National Insurance Company Ltd. v. Shilly Joy and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE J.B.KOSHY** **&** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH** **THURSDAY, THE 11TH DECEMBER 2008 / 20TH AGRAHAYANA 1930** **MACA.NO. 447 OF 2003()** **----------------------------------** **OPMV.1021/1998 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, MUVATTUPUZHA** **....................** ## **APPELLANT(S): APPELLANT/3RD RESPONDENT IN THE OP (MV)** **-------------------------------------------------------------------------------------** **NATIONAL INSURANCE COMPANY LTD., TRIPUNITHURA, REPRESENTED BY THE ASSISTANT MANAGER, NATIONAL INSURANCE COMPANY, MOTOR THIRD PARTY CLAIMS SECTION, AJAY VIHAR, M.G.ROAD, ERNAKULAM.** **BY ADV. SRI.LAL GEORGE** ## **RESPONDENT(S): PETITIONERS & RESPONDENTS 1 & 2 IN THE OP (MV)** **-------------------------------------------------------------------------------------------------** **----** **1. SHILLY JOY, W/O.LATE JOY, AGED 28 YEARS, KANNIKULATHIL HOUSE, ONAKKOOR.** **2. JESUEITE (MINOR), D/O.LATE JOY, AGED 6 YEARS, DOB 21.02.1992, KANNIKULATHIL HOUSE, ONAKKOOR, REPRESENTED BY MOTHER AND NEXT FRIEND SHILLY JOY, W/O.LATE JOY, KANNIKULATHIL HOUSE, ONAKKOOR.** **3. JENUVENE (MINOR), D/O.LATE JOY, AGED 3 YEARS, DOB 11.05.1995, KANNIKULATHIL HOUSE, ONAKKOOR, REPRESENTED BY MOTHER AND NEXT FRIEND SHILLY JOY, W/O.LATE JOY, KANNIKULATHIL HOUSE, ONAKKOOR.** **4. MARKOSE, S/O.MATHEW, AGED 60 YEARS, KANNIKULATHIL HOUSE, ONAKKOOR.** **5. ANNAMMA, W/O.MARKOSE, AGED 58 YEARS, KANNIKULATHIL HOUSE, ONAKKOOR.** **6. STEEPHEN, S/O.KURIAKOSE, PLATHOTTATHIL HOUSE, RAMAMANGALAM.** **7. SHIJU, S/O.RAJAN, CHAKKALATHU HOUSE, THEMMANIMATTOM, IKKARANADU S., RAMAMANGALAM (VIA)** **ADV. SRI.ANIL S.RAJ FOR R6** **SRI.P.V.SANTHOSH JOSE FOR R1 TO R5 SRI.M.G.KARTHIKEYAN FOR R1 TO R5 SRI.M.ABILASH FOR R1 TO R5** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11/12/2008 ALONG WITH MACA NO.448 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **J.B. KOSHY & THOMAS P.JOSEPH, JJ.** = = = = = = = = = = = = = = = = = = = = = = = = = = **M.A.C.A. Nos.447, 448, 564 & 565 of 2003** = = = = = = = = = = = = = = = = = = = = = = = = = = = **Dated this the 11[th] day of December, 2008** **J U D G M E N T** ---------------------- ## **Thomas P. Joseph, J.** These appeals arise from the common award passed by the Motor Accidents Claims Tribunal, Muvattupuzha (for short, “the Tribunal”) in O.P(MV) Nos.1000 and 1021 of 1998. For convenience, parties are referred as petitioners and respondents as before the Tribunal. 2. Accident from which the applications for compensation arose occurred on 23.3.1998. Petitioner in O.P(MV) No.1000 of 1998 was riding a motor cycle with a pillion rider. It is alleged that tempo van driven by the second respondent, owned by the first respondent and insured with the third respondent hit the motor cycle allegedly due to the rashness and negligence of the second respondent, causing injuries to the rider as well as the pillion rider. Rider claimed compensation by filing O.P(MV) No.1000 of 1998. Pillion rider, who sustained serious injuries succumbed to it on 27.3.1998. His legal representatives filed O.P(MV) No.1021 of 1998 claiming compensation. Second respondent, driver of the tempo van remained ex parte before the Tribunal. Respondents 1 and 3 contested the case. They denied **M.A.C.A. Nos.447, 448, 564 & 565 of 2003** ## **-: 2 :-** negligence on the part of the second respondent and attributed negligence on the part of the rider of the motor cycle. Third respondent further contended that tempo van had no fitness certificate and the second respondent had no valid licence to drive the vehicle at the relevant time. Tribunal found that accident occurred due to the negligence of the second respondent and awarded compensation of Rs.2,64,000/- to the rider while Rs.6,42,700/- was awarded to the legal heirs of the deceased pillion rider. They were also allowed to realise interest at the rate of 9% per annum from the date of application till realisation. Third respondent was directed to deposit the amount awarded. Aggrieved, third respondent has preferred M.A.C.A. Nos.447 and 448 of 2003 from awards in O.P.(MV) Nos.1021 and 1000 of 1998, respectively. Claiming enhanced compensation, rider and legal heirs of the deceased pillion rider have preferred M.A.C.A. Nos.564 and 565 of 2003 from awards in O.P(MV) Nos.1000 and 1021 respectively. 3. We heard counsel for petitioners and contesting respondent. Third respondent (appellant in M.A.C.A. Nos.448 and 447 of 2003) filed I.A. Nos.3422 and 3423 of 2008 respectively in the said appeals seeking permission to amend the appeal memoranda. These applications are heard along with the appeals. **M.A.C.A. Nos.447, 448, 564 & 565 of 2003** ## **-: 3 :-** 4. Following points arose for consideration. - (i) Whether third respondent is liable to deposit the amount - awarded? (ii) Whether petitioners are entitled to get enhanced compensation? 5. Perused records. ## 6. **Point No.1.** Petitioner in O.P(MV) No.1000 of 1998, rider of motor cycle gave evidence as P.W.1 regarding the accident. Based on that evidence and Exhibits A1, A2 and A5, Tribunal found that accident occurred on the wrong side of the tempo van and fixed negligence on the second respondent. That part of the finding of the Tribunal is not under challenge in these appeals. 7. It is argued by the counsel for third respondent, insurer of the tempo van that Tribunal went wrong in casting liability on the third respondent ignoring its contention that tempo van had no fitness certificate which amounted to violation of policy conditions. It is also argued that all possible steps were taken by the third respondent to summon the fitness certificate of the offending vehicle and in spite of that, Tribunal did not draw adverse inference against respondents 1 and 2 who failed to produce the same. Counsel requested that I.A. **M.A.C.A. Nos.447, 448, 564 & 565 of 2003** ## **-: 4 :-** Nos.3422 and 3423 of 2008 may be allowed and the third respondent may be permitted to amend the appeal memoranda. 8. It is contended by the third respondent in the written statement that second respondent had no valid driving licence and tempo van had no fitness certificate during the relevant time. In the appeal memoranda it is contended that in Exhibit A5, charge sheet it is stated that tempo van was not having a valid fitness certificate issued under Section 56 of the Motor Vehicles Act (for short, “the Act”) and accordingly petty case No.97 of 1998 has been framed against the first respondent, owner of the vehicle and hence the Tribunal ought to have found that the tempo van was not having the fitness certificate to put the vehicle on public road and ought to have absolved the third respondent from the liability to pay compensation. What is sought to be incorporated by way of amendment of the appeal memoranda is thus: “(K) As per the police charge the driver of the insured vehicle was not having valid driving licence and police has charged petty case No.96/98 in that regard. Necessary petition was filed, seeking for a direction to the owner and driver of the vehicle to produce the driving licence before the Tribunal. However, **M.A.C.A. Nos.447, 448, 564 & 565 of 2003** ## **-: 5 :-** no documents were produced. There is violation of express terms and condition of the policy and the provisions of the Motor Vehicles Act. Hence, the appellant has no liability to indemnify the insured”. 9. Obviously to meet the contentions raised by the third respondent in the written statement, first respondent produced Exhibit B1 and B2, copy of driving licence of the second respondent and permit issued in respect of the tempo van. Now there is no contention on behalf of the third respondent that second respondent had no driving licence or that tempo van was not issued with permit as required under the provisions of the Act. It is also not disputed that Exhibit B2, permit was valid for the period from 31.1.1998 to 20.1.2000 ( accident occurred 23.3.1998). Then the question is whether the third respondent can succeed on its contention that the tempo van had no fitness certificate at the time of accident. 10. Section 149(2) of the Act enables the insurer to avoid liability on the grounds enumerated therein. This is not a case of the vehicle being used for a purpose not covered by the permit (Exhibit B2). Third respondent cannot also rest contend by raising a plea that there was no fitness certificate for the vehicle at the relevant **M.A.C.A. Nos.447, 448, 564 & 565 of 2003** ## **-: 6 :-** time. We do not forget that according to the third respondent, it had filed a petition before the Tribunal to direct respondents 1 and 2 to produce fitness certificate. We shall be adverting to that, later. ## 11. In **National Insurance Co. Ltd. v. Swaran** **Singh** (AIR 2004 SC 1531) a three member Bench of the Honourable Supreme Court considered the circumstances under which insurer can avoid liability and the nature of evidence it has to adduce. In paragraph 44 it is observed thus: “Such a breach on the part of the insurer must be established by the insurer to show that not only the insured used or caused or permitted to be used the vehicle in breach of the Act but also that the damage he suffered ” flowed from the breach . (under line supplied) ## In Paragraph 64 it is observed thus: “The proposition of law is no longer res integra that the person who alleges breach must prove the same. The insurance company is, thus, required to establish the said breach by cogent evidence. In the event, the **M.A.C.A. Nos.447, 448, 564 & 565 of 2003** **-: 7 :-** insurance company fails to prove that there has been breach of conditions of policy on the part of the insured, the insurance company cannot be absolved of its liability”. Summing up the findings, it is observed in Paragraph 102(ii) and (iii), thus: “(ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163-A or Section 166 of the Motor Vehicles Act, 1988, inter alia in terms of Section 149(2)(a)(ii) of the said Act. (iii) The breach of policy condition, e.g., disqualification of driver or invalid driving licence of the driver, as contained in subsection (2)(a)(ii) of Section 149, have to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences **M.A.C.A. Nos.447, 448, 564 & 565 of 2003** ## **-: 8 :-** available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding the use of the vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time”. What emerges from the above decision is that insurer, to avoid liability has to prove that the insured committed breach of the conditions of policy and further, that damages the insured suffered flowed from such breach. lt is also to be shown that insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the conditions of policy regarding the use of the vehicle. Learned counsel for third respondent relied on an unreported decision of a learned Single Judge of this Court in **Sreenivasan v. Malathy** (M.A.C.A. No.1856 of 2006 decided on 12.6.2008) to support his contention that since the period of fitness certificate had **M.A.C.A. Nos.447, 448, 564 & 565 of 2003** ## **-: 9 :-** expired, the third respondent is not liable. It is not as if every absence of fitness certificate should absolve the insurer of its liability. Accident must have some nexus with the absence of fitness certificate. We are unable to say on the facts of this case that absence of fitness certificate contributed to the accident. There is no allegation in this case that there was any negligence or refusal on the part of the first respondent to obtain fitness certificate for the offending vehicle. There is also no case or evidence that the vehicle was in such a condition that it was not fit to be put on public road and that such condition of the vehicle resulted in or contributed to the accident. 12. Now we shall advert to the question whether it is proved that there was no fitness certificate for the offending vehicle and whether effective steps were taken by the third respondent. What is relied on is Exhibit A5, copy of the charge-sheet where it is stated that for want of fitness certificate, a petty case was registered against the first respondent. Final report submitted by the investigation officer is in the discharge of his official duty. There is of course a presumption regarding regularity of official acts. But presumption is only regarding the correctness of the duty performed and and not regarding the truth of the act performed. What the Investigating officer stated in Exhibit A5 is what he claimed to have come across in **M.A.C.A. Nos.447, 448, 564 & 565 of 2003** ## **-: 10 :-** the course of investigation (that the vehicle was not having the valid fitness certificate). What is proved by marking Exhibit A5 is only that according to the Investigating officer, vehicle was not having a fitness certificate. A charge is only an accusation. Question whether that accusation is correct on facts, still remains unresolved. Therefore, from the mere marking of Exhibit A5, no inference is possible that the offending vehicle had no fitness certificate at the relevant time. No attempt was made by the third respondent to summon the Investigating officer and examine him as a witness to prove his finding in which case the first respondent had the opportunity to crossexamine that officer in respect of that finding. 13. Now we shall advert to the application filed by the third respondent before the Tribunal to direct respondents 1 and 2 to produce the fitness certificate. Counsel contended that in the absence of respondents 1 and 2 producing the fitness certificate an adverse inference ought to have been drawn against them. We do not forget that in appropriate cases it is open to the Tribunal to draw appropriate inferences. But drawing of inference is not a matter of course. That has to be done on the facts of the case and in appropriate circumstances. It is not as if every failure to do something should result in adverse inference. We have referred to Exhibit B2 and that **M.A.C.A. Nos.447, 448, 564 & 565 of 2003** ## **-: 11 :-** there is no case or evidence of cancellation of the fitness certificate. We have also stated that there is no case or evidence to show that the vehicle was unworthy of being put on the public road. Assuming that first respondent did not produce the fitness certificate, third respondent could have summoned the registering authority concerned to produce the file relating to the fitness certificate issued in respect of the offending vehicle during the relevant time. According to the third respondent, there was violation of policy conditions. When insurance coverage is admitted, exclusion of liability on account of breach of conditions is something which has to be pleaded and proved by the insurer. Such evidence has not been adduced. In the circumstances, for the mere fact of filing of application for a direction to produce the fitness certificate, we are not inclined to think that any adverse inference could or should be drawn against the first respondent-insured. As such we are unable to accept the contention that policy conditions are violated. In the circumstances there is no necessity to allow the applications filed to amend the appeal memoranda and I.A. Nos.3422 and 3423 shall stand dismissed. We are satisfied that on the facts and circumstances and what we have discussed, liability has to be fastened on the respondents and the third respondent has to deposit the amount awarded. **M.A.C.A. Nos.447, 448, 564 & 565 of 2003** ## **-: 12 :-** ## 14. **Point No.2:** ## **(a) O.P(MV) No.1000 of 1998:** Petitioner is a LIC agent and was aged 49 years at the time of accident. He claimed his monthly income as Rs.10,000/and produced Exhibits A13 and X1 in proof of that. Tribunal found the annual income of the petitioner at Rs.64,800/- during the relevant time and found from Exhibits A13 and X1 that the reduction in earning power towards the first year commission was by 1/3[rd] and accordingly, fixed the loss at the rate of Rs.3,600/- per month for the purpose of awarding compensation for loss of earnings. Counsel for the petitioner contended that the monthly income fixed, in the light of the documents produced is low. It is also contended that compensation awarded on all counts are low. 15. So far as monthly income of the petitioner is concerned, we find from paragraph 17 of the award that Tribunal has referred to the entire documents produced and based on that, found the annual income of the petitioner as Rs.64,800/-. That is based on Exhibit A13 which revealed that the petitioner had earned a total sum of Rs.65,362/- as commission including the first year commission and renewal commission. It is seen that the Tribunal has also taken into account Exhibit X1 in arriving at that conclusion. We are not **M.A.C.A. Nos.447, 448, 564 & 565 of 2003** ## **-: 13 :-** persuaded to interfere with the finding entered by the Tribunal after consideration of the documents produced by the petitioner. 16. Exhibit A6 is a copy of wound certificate pertaining to the injuries suffered by the petitioner. He suffered fracture of right femur, compound fracture of both bones of right leg and head injury. Exhibits A7 and A8 are discharge summaries. Petitioner underwent inpatient treatment for 64 days. He was treated with interlocking nailing of right femur. Exhibit A9 shows that petitioner was admitted in the hospital on 29.11.2001 for removal of implant and discharged on 13.12.2001. He remained inpatient for 14 days. Tribunal found that the actual loss of earnings suffered by the petitioner is Rs.3,600/- per month (as seen from paragraph 18 of the award). Reduction in earnings was 1/3[rd] of the annual income of Rs.64,800/- (Rs.5,400/- per month). Loss of earnings was awarded for a period of four months. In the nature of the injuries and period of treatment, we are satisfied that the award is just and fair. 17. It is contended by the learned counsel that compensation awarded for disability is also low. Petitioner produced Exhibit A11, disability certificate issued by P.W.4, where disability is stated as 20%. Exhibit A12 is yet another certificate where it is stated that petitioner suffered impairment of brain function which was at 15%. Based on **M.A.C.A. Nos.447, 448, 564 & 565 of 2003** ## **-: 14 :-** Exhibits A11, A12 and the evidence of P.Ws.4 and 5, Tribunal fixed the permanent disability of the petitioner at 20%. Though it is contended by the counsel that assessment of disability made by the Tribunal is not correct, no justifiable reason is shown to interfere with that finding. Tribunal has considered the fact that the petitioner had crossed the age of 50, and 11 was taken as the multiplier for the purpose of awarding compensation for disability and consequent loss of earning power. Tribunal has taken 20% as disability, Rs.64,800/- as annual income and awarded Rs.1,42,000/- on that count. We find from the award that Rs.20,000/- was awarded for loss of amenities of life, Rs.25,000/- for pain and suffering and Rs.50,000/- was awarded for treatment expenses. Compensation was also awarded for transportation, expenses of bystander and on other admissible heads. Thus, a total sum of Rs.2,64,000/- was awarded as compensation. Considering the nature of injuries suffered by the petitioner and also the nature and period of treatment undergone, we are satisfied that compensation awarded to the petitioner is just and fair and required no interference. ## 18. (b) **O.P(MV) No.1021 of 1998:** Petitioners are the legal heirs of the deceased. First petitioner is the widow aged 28 years at the relevant time, petitioners **M.A.C.A. Nos.447, 448, 564 & 565 of 2003** ## **-: 15 :-** 2 and 3 are minor daughters and 4 and 5 are parents, aged 60 and 58 years, respectively. Deceased was a LIC agent and according to the petitioners. he was earning at the rate of Rs.15,000/- per month. Though accident was on 23.3.1998, he succumbed to the injuries only on 27.3.1998. It is contended on behalf of the petitioners that compensation awarded is meagre. 19. Tribunal has discussed the issue relating to the compensation payable to the petitioners in paragraphs 28 to 34 of the award. Petitioners produced Exhibit X2 to prove the income of the deceased. There, income for a period of three years is stated. From Exhibit X3, Tribunal found that deceased had received Rs.11,460/- by way of income as LIC agent during 1998-99. Since renewal commission will be available to the dependents due to the death of the deceased, Tribunal observed that loss to the dependents is liable to be assessed on the basis of commission received during the first year. Based on Exhibit X2, Tribunal found that average income for the first year is Rs.54,000/-. Accordingly, monthly income was fixed as Rs.4,500/- and deducting 1/3[rd] towards personal expenses, loss of dependency and contribution to the petitioners per year was fixed as Rs.36,000/-. We find from the award that Tribunal has considered all the relevant documents produced and the annual contribution was **M.A.C.A. Nos.447, 448, 564 & 565 of 2003** ## **-: 16 :-** fixed at Rs.36,000/- which in the facts and circumstances of the case requires no interference. 20. Since Exhibit A18 revealed that the deceased was 36 years, 16 was taken as the multiplier taking guidelines from the second schedule of the Act. Thus compensation payable to the petitioners was found to be Rs.5,76,000/-. We have considered the submission of the counsel for the petitioners that compensation awarded is low. But considering the age of the deceased, his occupation and all relevant factors, we are not persuaded to accept that contention. 21. It is revealed from paragraph 32 of the award that taking into account Exhibit A20 series, Rs.7,200/- was awarded for treatment expenses. Rs.3,000/- was awarded for funeral expenses and Rs.1,600/- was awarded for transportation. For pain and suffering undergone by the deceased, Rs.10,000/- was awarded. Loss of consortium to the first petitioner was compensated by awarding Rs.15,000/-. Petitioners 2 and 3 together were awarded Rs.20,000/for loss of love, affection and guidance. A further sum of Rs.20,000/was awarded for loss of expectation of life. Thus, total compensation awarded is Rs.6,42,700/-. We have considered the submissions made by the counsel for the petitioners for enhancement of compensation. **M.A.C.A. Nos.447, 448, 564 & 565 of 2003** **-: 17 :-** But on going through the award and also considering all relevant factors, we are not persuaded to accept that contention. 22. In the light of our finding on Point Nos.1 and 2, no interference is required with the common award under challenge on any count. Resultantly, these appeal fail and are dismissed. Parties will bear their respective costs in the appeals. Interlocutory application Nos.3422 and 3423 of 2008 shall stand dismissed. ## **J.B. KOSHY, JUDGE.** ## **THOMAS P.JOSEPH, JUDGE.** vsv