National Insurance Company Limited v. Shaji and Premarajan, MACA No. 783 of 2009

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 19TH DAY OF FEBRUARY 2020 / 30TH MAGHA, 1941** ## **MACA.No.783 OF 2009** **AGAINST THE AWARD IN OP(MV)NO. 1544/2001 DATED 25-11-2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PATHANAMTHITTA** ## **APPELLANT/2ND RESPONDENT:** **NATIONAL INSURANCE CO.LTD. THIRUVANANTHAPURAM, REP.BY THE MANAGER, KOCHI REGIONAL OFFICE, M.G.ROAD,COCHIN-35.** **BY ADV. SRI.E.M.JOSEPH** ## **RESPONDENTS/CLAIMANT & 1ST RESPONDENT:** |**1**|**SHAJI, AGED 22,**| |---|---| ||**S/O.GOPI, VALIYATHARAYIL,**| ||**THEKKEKARA,CHITTAR, PATHANAMTHITTA.**| |**2**|**PREMARAJAN,**| ||**S.K.NIVAS, MUNDAKKEL**| ||**KOLLAM.**| ||**R1 BY ADV. SRI.P.V.BABY**| ||**R1 BY ADV. A.N.SANTHOSH**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 19.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.783 of 2009 2 ## **JUDGMENT** The appellant is the 2[nd] respondent insurer in O.P(MV)No.1544 of 2001 on the file of the Motor Accidents Claims Tribunal, Pathanamthitta, a claim petition filed by the 1[st] respondent herein under Section 163A of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained by him in a motor accident, which occurred on 22.09.2001, while he was driving a stage carriage bearing registration No.KLI-8456, owned by the 2[nd] respondent herein and insured with the appellant. Going by the averments in the claim petition, at the place of accident, in order to avoid a head-on collision with a car coming from the opposite direction, the claimant turned the stage carriage to the west. The front wheel of the stage carriage ran over the drainage on the western side and the vehicle hit against a granite wall. In the accident, the claimant sustained injuries, resulting permanent disability. Alleging that the claimant sustained injuries in an motor accident involving stage carriage bearing registration No.KLI-8456, a claim petition was filed before the Tribunal claiming a total compensation of Rs.1,28,000/- under various heads, which was limited to Rs.1,00,000/- for the purpose of payment of Court Fee. MACA No.783 of 2009 3 2. Before the Tribunal, the owner of the vehicle, the 2[nd] respondent herein, remained absent and he was set ex parte. 3. The appellant insurer filed written statement admitting insurance coverage of the stage carriage involved in the accident. The insurer contended that, since the accident occurred due to the negligence on the part of the claimant, a claim petition under Section 163A of the Motor Vehicles Act is not maintainable. The insurer disputed the age, occupation, monthly income, etc. stated in the claim petition. The insurer contended that the compensation claimed is highly excessive. 4. Before the Tribunal, Exts.A1 to A9 were marked on the side of the claimant. A copy of insurance policy of the stage carriage was marked as Ext.B1. Both sides have not chosen to adduce any oral evidence. 5. After considering the pleadings and materials on record, the Tribunal arrived at a conclusion that the claimant sustained injuries, resulting permanent disablement, in a motor accident involving stage carriage bearing registration No.KLI-8456. As on the date of accident, the claimant was working as the driver of that stage carriage. Since the stage carriage is covered by a valid insurance policy, the appellant insurer was held liable to indemnify MACA No.783 of 2009 4 the insured. Under various heads, the Tribunal awarded a total compensation of Rs.97,441/-, together with interest at the rate of 7.5% per annum from the date of petition till realisation, with a cost of Rs.3,000/-, and the insurer was directed to satisfy the award. 6. Challenging the award passed by the Tribunal, the appellant insurer is before this Court in this appeal. On 06.04.2009, when this appeal came up for admission, this Court admitted the matter on file and issued notice to the respondents. In I.A.No.986 of 2009, this Court granted interim stay for a period of two months. 7. Heard the learned Standing Counsel for the appellant insurer and also the learned counsel for the 1[st] respondent/ claimant. 8. During the course of arguments, the learned Standing Counsel for the appellant insurer would contend that Ext.B1 insurance policy of the stage carriage in question is an 'act only' policy, which will not cover the risk of the driver, in the absence of payment of additional premium. 9. Per contra, the learned counsel for the 1[st] respondent/claimant would rely on the decision of a Division MACA No.783 of 2009 5 Bench of this Court in **New India Assurance Company Ltd. v. Beena Kumari and others [2016 (3) KHC 796]** in order to contend that there is a statutory liability upon insurance company to satisfy claim in respect of a person engaged as a driver in a transport vehicle, to the extent payable under the relevant provisions of the Employees Compensation Act, 1923. 10. In **Beena Kumari** a Division Bench of this Court held that, from the provisions of Section 147 of the Motor Vehicles Act, it is quite obvious that there is a statutory liability upon the insurance company to satisfy the claim in respect of a person engaged as a driver, insofar as it is a 'transport vehicle'. Since the factual position is not disputed, liability still is there for the insurance company to satisfy the claim, but the limit is specified in the Statute itself, i.e., it shall be to the extent as payable under the relevant provisions of the Employees Compensation Act. 11. **New India Assurance Company Limited v. Lissy [2016 (1) KHC 130]** , dealing with the contention raised on behalf of the insurance company that, by virtue of the bar under Section 167 of the Motor Vehicles Act, the party cannot seek the benefit under both the streams, i.e., the Motor Vehicles Act, 1988 and the Employees Compensation Act, 1923, simultaneously, more MACA No.783 of 2009 6 so when they have already approached the Tribunal and claimed compensation under the relevant provisions of the Motor Vehicles Act, the Division Bench held that, the claimants have not availed remedy under both the Statutes simultaneously in respect of the same cause of action and as such, the bar under Section 167 of the Motor Vehicles Act is not attracted. Endeavour of this Court is only to have a scrutiny to see whether the eligible extent of compensation [with respect to the provisions of the Employees Compensation Act, in terms of clause (i) of the Proviso to Section 147(1)(b)] has been awarded, or if there is any excess, should it be scaled down in the appeal preferred by the insurance company. 12. In the instant case, there is no dispute with regard to the factual particulars in relation to occurrence of accident, the injuries sustained by the claimant, which was in the course of driving the stage carriage bearing registration No.KLI-8456, which had resulted in 15% permanent disability, as assessed by the Medical Board in Ext.A9 disability certificate. In the accident, the claimant sustained fracture of both bones left forearm; fracture transverse process L1; multiple abrasions on face; and abrasion on right forearm. Considering the nature of injuries and the disabilities noted in Ext.A9, the loss of earning capacity of the MACA No.783 of 2009 7 claimant is taken as 15% 13. The accident occurred on 22.9.2001. At the time of accident, the claimant was aged 22 years. In the claim petition, the monthly income of the claimant, as driver of the stage carriage involved in the accident, was claimed as Rs.3,300/-. The Tribunal took the monthly income notionally, as Rs.2,500/-. 14. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]** the Apex Court reckoned the monthly income of a coolie (manual labourer), who met with a road accident in the year 2004, at the age of 35 years, notionally as Rs.4,500/-. The Apex Court held that, the claimant who was working as a coolie cannot be expected to produce any documentary evidence to substantiate his claim. In the absence of any other evidence contrary to the claim made by the claimant, in the facts of the said case, the Tribunal should have accepted the claim of the claimant. The Apex Court made it clear that, in all cases and in all circumstances, the Tribunal need not accept the claim of the claimant, in the absence of supporting material. It depends on the facts of each case. In a given case, if the claim made is so exorbitant or if the claim made is contrary to ground realities, the Tribunal may not accept the MACA No.783 of 2009 8 claim and may proceed to determine the possible income by resorting to some guess work, which may include the ground realities prevailing at the relevant point of time. 15. In **Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd. [(2014) 2 SCC 735]** , taking note of the earlier decision in **Ramachandrappa's case (supra)** , the Apex Court reckoned the monthly income of a vegetable vendor, who met with a road accident in the year 2008, at the age of 24 years, notionally as Rs.6,500/-. In the said decision, the Apex Court held that, a labourer in an unorganised sector doing his own business cannot be expected to produce documents to prove his monthly income. Therefore, there was no reason for the Tribunal and the High Court to ask for evidence to prove his monthly income. Going by the state of economy prevailing at that time and the rising prices in agricultural products, the Apex Court accepted his case that a vegetable vendor is reasonably capable of earning 6,500/per month. 16. In the absence of any reliable evidence, considering the economic conditions prevailing at the time of accident, i.e., during the year 2001, and taking note of the fixation of notional monthly income by the Apex Court in the decisions referred to supra, this MACA No.783 of 2009 9 Court deem it appropriate to re-fix the monthly wages of the claimant notionally as Rs.3,000/-, for the purpose of assessing compensation under Section 4 of the Employees Compensation Act. 17. Section 4 of the Employees Compensation Act deals with amount of compensation. As per clause (a) of sub-section (1) of Section 4, subject to the provisions of the Act, where death results from the injury, the amount of compensation shall be an amount equal to fifty per cent of the monthly wages of the deceased employee multiplied by the relevant factor; or an amount of one lakh and twenty thousand rupees, whichever is more. As per clause (b) of sub-section (1) of Section 4, subject to the provisions of the Act, where permanent total disablement results from the injury, the amount of compensation shall be an amount equal to sixty per cent of the monthly wages of the injured employee multiplied by the relevant factor; or an amount of one lakh and forty thousand rupees, whichever is more. Aper Explanation-I, for the purposes of clause (a) and clause (b) 'relevant factor' in relation to an employee means the factor specified in the second column of Schedule IV against the entry in the first column of that Schedule specifying the number of years MACA No.783 of 2009 10 which are the same as the completed years of the age of the employee on his last birthday immediately preceding the date on which the compensation fell due. 18. As per clause (c) of sub-section (1) of Section 4 of the Employees Compensation Act, subject to the provisions of the Act, where permanent partial disablement results from the injury, the amount of compensation shall be, (i) in the case of an injury specified in Part II of Schedule I, such percentage of the compensation which would have been payable in the case of permanent total disablement as is specified therein as being the percentage of the loss of earning capacity caused by that injury; and (ii) in the case of an injury not specified in Schedule I, such percentage of the compensation payable in the case of permanent total disablement as is proportionate to the loss of earning capacity (as assessed by the qualified medical practitioner) permanently caused by the injury. As per Explanation-I to clause (c), where more injuries than one are caused by the same accident, the amount of compensation payable under this head shall be aggregated but not so in any case as to exceed the amount which would have been payable if permanent total disablement had resulted from the injuries. As per Explanation-II, MACA No.783 of 2009 11 in assessing the loss of earning capacity for the purpose of subclause (ii), the qualified medical practitioner shall have due regard to the percentages of loss of earning capacity in relation to different injuries specified in Schedule I. 19. In the instant case, the amount of compensation payable to the claimant, in terms of sub-clause (ii) clause (c) of sub-section (1) of Section 4 of the Employees Compensation Act shall be 15% of the compensation which would have been payable under clause (b) of sub-section (1) of Section 4, in the case of permanent total disablement, i.e., 60% of the monthly wages of Rs.3,000/- (notional monthly income) multiplied by the relevant factor 221.37 for an employee aged not more than 22 years. In the result, the amount of compensation payable to the claimant is calculated as follows; 3,000 x 60/100 x 221.37 x 15/100 = Rs.59,769/The amount of compensation shall carry interest at the rate of 12% per annum, being the statutory rate under the Employees Compensation Act, from the date of accident. 20. In the result, the appeal is disposed of by scaling down the compensation awarded by the Motor Accidents Claims Tribunal, Pathanamthitta in O.P(MV)No.1544 of 2001 to MACA No.783 of 2009 12 **Rs.59,769/-,** which shall carry interest at the rate of 12% per annum from the date of accident till realisation. The appellant insurer shall satisfy the said amount within a period of two months from the date of receipt of a certified copy of this judgment, after deducting the liability, if any, of the 1[st] respondent/claimant towards Balance Court Fee and Legal Benefit Fund. The disbursement of the said amount to the 1[st] respondent/claimant shall be made taking note of the law on the point and in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06.09.2019 and clarified further in Official Memorandum No.D162475/2016 dated 07.11.2019. The 1[st] respondent/claimant shall provide his bank details (attested copy of the relevant page of the Bank Passbook having details of the Bank Account Number and IFSC Code of the branch) before the Tribunal, with copy to the learned Standing Counsel for the insurer within one month from the date of certified copy of this judgment. This appeal is disposed of as above. No order as to costs. **Sd/-** ## **ANIL K.NARENDRAN** JV **JUDGE**