National Insurance Company Ltd. v. Lakshmikutty Amma and Others

1 MACA.No.532 OF 2008 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 04TH DAY OF MARCH 2021 / 13TH PHALGUNA, 1942** ## **MACA.No.532 OF 2008** **AGAINST THE AWARD IN OPMV 2635/2001 DATED 22-12-2006 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL ,THRISSUR** ## **APPELLANT/S:** **THE NATIONAL INSURANCE CO.LTD** **THRISSUR, REPRESENTED BY ITS MANAGER,, MOTOR THIRD PARTY CELL, OMANA BLDG., M.G.ROAD,, ERNAKULAM, KOCHI-35.** **BY ADV. SRI.GEORGE CHERIAN (SR.)** ## **RESPONDENT/S:** |**1**|**LAKSHMIKUTTY AMMA**| |---|---| ||**W/O. LATE RAMACHANDRAN NAIR @ R.C.NAIR,**| ||**BHADRALAYAM, KOODAPPULAM RAMAPURAM, KOTTAYAM**| ||**DISTRICT.**| |**2**|**GOPAKUMAR, S/O.LATE RAMACHANDRAN NAIR**| ||**@ R.C.NAIR, BHADRALAYAM, KOODAPPULAM RAMAPURAM,**| ||**KOTTAYAM DISTRICT.**| |**3**|**BHADRAKUMAR**| ||**S/O.LATE RAMACHANDRAN NAIR @ R.C.NAIR, BHADRALAYAM,**| ||**KOODAPPULAM RAMAPURAM, KOTTAYAM DISTRICT.**| ||**R1 BY ADV. SRI.JIBU P THOMAS**| ||**R1 BY ADV. SRI.T.C.SURESH MENONCAVEATOR**| ||**R1-3 BY ADV. SRI.P.S.APPU**| ||**R2-3 BY ADV. SRI.T.C.SURESH MENON**| ||**R2-3 BY ADV. SRI.A.R.NIMOD**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 04.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA.No.532 OF 2008 ## **C.S.DIAS, J. ====================== MACA No.532 of 2008** **====================== Dated this the 4[th] day of March, 2021** ## **JUDGMENT** The third respondent in OP (MV) No.2635/2001 on the file of the Motor Accidents Claims Tribunal, Thrissur is the appellant. The respondents in the appeal are the petitioners 2 to 4 in the claim petition and the legal representatives of the deceased claimant No.1. The respondents 1 and 2 in the claim petition - are not made parties in the appeal, stating that they are unnecessary parties. The parties are, for the sake of convenience, referred to as per their status before the Tribunal. 2. The concise case of the deceased first petitioner in the claim petition, relevant for the determination of the appeal, is that: On 3.5.2001, while the first petitioner's elephant named 'Gopi' was being taken to Guruvayoor, after 3 MACA.No.532 OF 2008 Thrissur Pooram Festival, through the Thrissur -Kunnamkulam public road, when it reached Mundoor, a bus bearing registration No.KL8/E-1555 (offending vehicle) driven by the second respondent in a rash and negligent manner, hit the elephant. In the accident, the elephant sustained serious injuries. Even though the elephant was treated by Dr.K.C Panicker for months, the elephant did not recover its health. The elephant is not in a position to participate any function. Due to the loss of the elephant's left tusk with horn core detached from the maxillary and pre-maxillary alveoli, it is no longer a tusker. The elephant's beauty and 'Thalayeduppu' is lost. The elephant is disfigured. The first respondent is the owner of the offending vehicle and the third respondent is the insurer. Hence, the respondents 1 to 3 are jointly and severally liable to compensate the first petitioner for the loss, which he quantified at Rs.19,15,000/-. 3. The respondents 1 and 2 were absent and were set ex parte. 4 MACA.No.532 OF 2008 4. The third respondent filed a written objection, inter alia, refuting the allegations in the claim petition. The third respondent contended that the claim petition was not maintainable before the Tribunal. The first petitioner is not the owner of the elephant. The elephant had not sustained any injuries in the alleged accident. The allegation that the elephant's beauty was lost in the accident was also denied. It was contended that the elephant was very old. The amount of compensation claimed under the various heads at Rs.19,15,000/- was exorbitant and excessive. However, the third respondent admitted that the offending vehicle had a valid insurance policy. 5. During the pendency of the claim petition, the first petitioner expired. His legal representatives were impleaded as petitioners 2 to 4 as per order in IA No.207/2005 dated 13.1.2005. 6. The claim petition was consolidated and jointly tried with connected cases arising out of the same accident. In the present claim petition, PW2- the doctor who treated 5 MACA.No.532 OF 2008 the elephant - was examined on the side of the petitioners and Exts A30 to A32 series were marked in evidence. The third respondent produced and marked Ext B1 copy of insurance certificate of the offending vehicle in evidence. 7. The Tribunal, after analysing the pleadings and materials on record, by the impugned award allowed the claim petition, in part, by holding that the petitioners are entitled to realise compensation, on account of the injury sustained by the elephant, from the third respondent, under the following heads of claim: |1|Expense for conveyance|Rs.3,000/-| |---|---|---| |2|Expense for extra nourishment|Rs.50,000/-| |3|Expense for treatment|Rs.25,900/-| |4|Expense to mahouts|Rs.8,000/-| |5.|Expense for subsistence|5,40,000/-| ||Total|6,26,900/-| 8. Aggrieved by the impugned award, the third respondent is in appeal. 6 MACA.No.532 OF 2008 9. Heard the learned counsel appearing for the appellant/third respondent and the learned counsel appearing for the respondents/petitioners 2 to 4. 10. The learned counsel appearing for the appellant argued that the impugned award passed by the Tribunal is erroneous and unsustainable in law. The Tribunal has allowed expenses towards the subsistence of the elephant adopting the multiplier method, which is without any pleadings or proof. The Tribunal has gone wrong in awarding interest for the entire amount of Rs.5,40,000/towards the subsistence expenses of the elephant, which is also wrong. The learned counsel relied on the decision of this Court in **United India Insurance Co.Ltd vs. Sekhara Marar [2012 (4) KLT 332]** and contended that the Tribunal ought to have considered the case as a case of damage to property. The Tribunal ought not have awarded the amount under the head 'expense for subsistence'. She prayed that the appeal be allowed and the claim petition be dismissed. 7 MACA.No.532 OF 2008 11. Per contra, the learned counsel appearing for the respondents contended that the impugned award passed by the Tribunal is correct, and the course adopted by the Tribunal is justifiable in light of Sec.145 (g) of the Motor Vehicles Act, 1988, (in short “Act”). According to the learned counsel, as the accident occurred while the elephant was walking on a public road, the elephant will not fall within the purview of goods under Sec.145 (g) of the Act. He placed emphasis on Sec.2(13) of the Act and contended that goods includes livestock. However, as the elephant was walking along the road, the elephant has to be treated as person/animal falling within the purview of Wild Life (Protection) Act, 1972 read with the Kerala Captive Elephant (Management and Maintenance), Rules, 2003. Hence, the Tribunal was justified in awarding compensation as per the impugned award. He relied on an unreported decision of a Division Bench of this Court in MACA Nos 1104 and 1603 of 2008, wherein this Court had, in a case of similar facts, awarded compensation on account of the 8 MACA.No.532 OF 2008 death of an elephant in a road accident. He prayed that the appeal be dismissed and the impugned award be confirmed. 12. This Court, while admitting the appeal, by order dated 10.4.2008 in IA No.649/2008 had stayed the operation of the impugned award, on condition that the appellant deposits 50% of the award amount within a period of two months. Subsequently, by order dated 29.4.2008 in IA No.1053/2008, this Court permitted the respondents in the appeal to withdraw the amount deposited, pursuant to the order dated 10.4.2008. It is not disputed by both sides that the respondents have withdrawn the amount from the Tribunal. 13. The point that emanates for consideration in the appeal is whether the impugned award passed by the Tribunal is legally sustainable or not. 14. The fact that the elephant sustained injuries on account of the accident that occurred on 3.5.2001, due to the negligent driving by the second respondent, is proved by Ext A5 charge-sheet read with Ext A3 scene mahazar and 9 MACA.No.532 OF 2008 Ext A4 AMVI report. It is also established that the accident occurred due to the negligence of the second respondent. It is substantiated that the elephant sustained injuries and underwent treatment as per Ext A11 wound certificate and Ext A32 series medical bills. 15. The petitioners examined PW2, the doctor who treated the elephant, and marked Ext A31 valuation certificate. The value of the elephant, prior to the accident, was assessed and fixed by PW2 at Rs.8,00,000/-. 16. All the above facts are undisputed by both sides. 17. Nevertheless, on a reading of paragraphs 21 and 22 of the impugned award, it can be gathered that the Tribunal first proceeded on the premise that the elephant was a property. Thereafter, the Tribunal proceeded with the claim treating the elephant as a person. The Tribunal went onto hold that the elephant was 62 years and needed Rs.500/- per day for its subsistence. Accordingly, adopting the multiplier at 3, the Tribunal arrived at a conclusion that the elephant needs an amount of Rs.1,80,000/- per year for 10 MACA.No.532 OF 2008 three years. The appellant/third respondent was held liable to indemnify the petitioners a total amount of Rs.5,40,000/in addition to the expenses under the other heads of claim 1 to 4 in paragraph 7 (supra). 18. On a careful reappreciation of the pleadings in the claim petition, it is deciphered that, it was the details of the first petitioner that was furnished instead of that of the elephant. The first petitioner had pleaded that he was 62 years of age; that he is the owner of the elephant; that he is self employed and that he has a monthly income of Rs.10,000/-. Nevertheless, the first petitioner claimed an amount of Rs.10,00,000/- as compensation for permanent disability of the elephant and Rs.5,00,000/- towards extra nourishment of the elephant and other actual expenses. On what basis, the first petitioner has quantified the said fanciful amount is not pleaded in the claim petition. 19. The glaring infirmity in the award is that the first petitioner in the claim petition had treated the elephant as 'property' and assessed the loss. Nevertheless, the 11 MACA.No.532 OF 2008 petitioners have miserably failed to prove the actual damage sustained to them/elephant in the accident. 20. The specific case of the petitioners in the claim petition is that the elephant lost its left tusk with horn core detached from the maxillary and pre-maxillary alveoli, so the elephant lost its beauty and sustained disfiguration. The petitioner produced and proved Ext A31 certificate through PW2, to prove the value of the elephant, prior to the accident. Ext A31 clearly states that the value of the elephant prior to the accident, is Rs.8,00,000/-. Therefore, by no stretch of imagination could the petitioners claim an amount of Rs.10,00,000/- as compensation for the loss of the left tusk of the elephant. By the production of Ext A31 valuation certificate, it stands established that the petitioners have treated the claim as one for damages falling under Sec.145 (g) of the Act. Hence, the Tribunal ought not to have adopted the multiplier method for claiming compensation. The Tribunal has, based on surmises and conjectures, treated the elephant as a person 12 MACA.No.532 OF 2008 and adopted the multiplier method, assuming the age of the elephant was 62 years for which there is no factual foundation in the pleadings. 21. It was the bounden duty of the petitioners to plead and prove the actual loss sustained to them due to the accident. True, in motor accident claims, a certain amount of guess work has to be done, but the same cannot be done at the peril of pleadings and proof. The petitioners have miserably failed to prove the pivotal aspect regarding the actual loss sustained by them. Therefore, the amount of Rs.5,40,000/- fixed by the Tribunal under the head 'expense for subsistence' is patently erroneous and ex facie wrong. 22. With respect to the other heads of claim, viz., (i) expense for conveyance, (ii) extra nourishment, (iii) expense for treatment, and (iv) expense to mahouts, the same are based on actuals, totalling to an amount of Rs.86,900/-, which I hold is reasonable and just. 23. Taking into consideration the fact that this Court had as early as in 2008 directed the appellant to deposit 13 MACA.No.532 OF 2008 50% of the award amount and the amount be released to the respondents/petitioners, I am of the considered opinion that the balance amount, after deducting an amount of Rs.86,900/- towards the actual expenses, can be fixed as the loss sustained to the petitioners due to the loss of the left tusk and disfiguration of the elephant. The said course will serve substantial justice and avoid a heart burn to both parties. At this distance of time, after the lapse of nearly two decades, and in light of the mandate under Order 41 Rule 23A of CPC that cases should not be remanded without cogent reasons, I am not inclined to remit the matter back to the Tribunal. Placing reliance on Ext A31 valuation certificate and taking into account the amount fixed by this Court to stay the operation of the impugned award, I hold that an amount of Rs.2,26,550/- is just and reasonable compensation for the loss sustained by the respondents/petitioners due to the loss of the left tusk and disfiguration of the elephant, in addition to the actual expenditure incurred by the petitioners. On 14 MACA.No.532 OF 2008 cumulative appreciation of the pleadings and materials on record and the abovementioned findings, I fix the total compensation payable to the respondents/petitioners at Rs.3,13,450/-. In the result, the appeal is allowed, in part, by holding that the respondents/petitioners are only entitled to an amount of Rs.3,13,450/- , which has already been deposited by the appellant and withdrawn by the respondents/petitioners, as compensation. In the facts and circumstances of the case, the parties shall bear their respective costs. ## **Sd/-** **C.S.DIAS** **JUDGE** **SKS/4.3.2021**