National Insurance Company Ltd. v. Vasanti M. & others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **& THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **MONDAY, THE 27TH DAY OF NOVEMBER 2017 / 6TH AGRAHAYANA, 1939** **MACA.No. 2286 of 2007** **----------------------** **AGAINST THE AWARD IN OP (M.V)NO. 77/2004 of MACT PALA DATED 12.07.2007** **APPELLANT/ 3RD RESPONDENT : ----------------------------** **THE NATIONAL INSURANCE COMPANY LTD., REPRESENTED BY ITS BRANCH MANAGER, BRANCH OFFICE, PALA.** **BY ADV.SRI.RAJAN P.KALIYATH** **RESPONDENTS/ CLAIMANTS 1 TO 4 & R1 AND R2 : -------------------------------------------** **1. VASANTHI.M., W/O.LATE MARIRAJ @ MARIA** **DAS, JAYANTHI BHAVAN, KOTTAMALA ESTATE DIVISION,,** **2. ARUN RAJ (MINOR), REP. BY MOTHER AND GUARDIAN VASANTHI.M., JAYANTHI BHAVAN, -DO-.** **3. SARAN RAJ (MINOR), REP. BY MOTHER AND GUARDIAN, VASANTHI.M, -DO-.** **4. CHELLATHAI, W/O.PERIYASWAMI,** - **H.NO.289, VADAKKEPERETTU KASIKANGANI LAYAM,** **5. REV.FR. SUPERIOR, KURISUMALA ASHRAM,** - **VAGAMON POST, KOTTAYAM.** **6. RAJESH.S., S/O.SELVARAJ,** **PUTHENPURACKAL HOUSE, VAGAMON POST, KOTTAYAM.** **R1 & R4 BY ADV. SRI.M.J.THOMAS** **R5 BY ADV. SRI.SHAJI THOMAS PORKKATTIL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 27-11-2017, ALONG WITH C.O.NO.32 OF 2008 AND M.A.C.A.NO.767 OF 2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **RKM** ## **C.T. RAVIKUMAR & B. SUDHEENDRAKUMAR, JJ.** **---------------------------------------------------------M.A.C. A. No. 2286 of 2007, C.O. No.32 of 2008 in M.A.C.A. No. 2286 of 2007 & M.A.C.A. No.767 of 2010 ---------------------------------Dated this the 27[th] day of November, 2017** ## **JUDGMENT** The captioned appeals arise from a common judgment and award passed by the Motor Accidents Claims Tribunal, Pala in O.P. (M.V.) Nos.77 of 2004 and 1105 of 2003 germinated from the same motor vehicle accident. It occurred on 07.11.2003 at about 3.00.p.m. at Gudalloor in Theni District. One Mr. Mariaraj and Mr. James, who were travelling in the vehicle involved in the accident viz., the mini lorry bearing Registration No.KL-5/F-6539, driven by one Rajesh.S., a common respondent in both the appeals and belonging to Rev. Fr. Superior of Kurisumala Ashram, the other common respondent. In the claim petition, it was averred that owing to the rash and negligent driving of the said vehicle by the aforesaid Rajesh, it capsized and consequently, Messrs Mariaraj and James sustained severe injuries. Sri. Mariaraj succumbed to the injuries sustained. In the said circumstances his legal heirs, who are respectively his widow, minor M.A.C. A. No. 2286 of 2007, C.O. No.32 of 2008 in M.A.C.A. No. 2286 of 2007 & M.A.C.A. No.767 of 2010 2 children and mother had filed O.P. (M.V.) No.77 of 2004 seeking compensation for his death and James, the injured filed O.P. (M.V.) No.1105 of 2003 seeking compensation for the bodily injuries sustained by him. The said claim petitions were disposed of as per the common award dated 30.12.2006 and subsequently, a revised common award was passed by the Tribunal, on 12.07.2007. As per the revised award in O.P. (M.V.) No.1105 of 2003, an amount of Rs.73,980/- was granted as compensation and in O.P. (M.V.) No.77 of 2004, an amount of Rs.3,40,908/- was granted as compensation. In both the cases the amount of compensation granted was ordered to carry interest @Rs.7.5% from the date of petition till realisation. The common 3[rd] respondent in the claim petition who is the insurer of the offending vehicle preferred the captioned appeals raising various contentions. We will advert to such contentions a little later. The cross objection was filed by the claimants in O.P. (M.V.) No.77 of 2004 seeking enhancement of the quantum of compensation. However, when the cross objection was taken up for consideration, the learned counsel appearing for cross objectors/ the claimants in O.P. (M.V.) No.77 of 2004, on instructions, submitted that the cross objectors do not wish to pursue with it any further and hence, the same may be dismissed as not pressed. M.A.C. A. No. 2286 of 2007, C.O. No.32 of 2008 in M.A.C.A. No. 2286 of 2007 & M.A.C.A. No.767 of 2010 3 ## 2. We have heard the learned counsel on both sides. The learned counsel appearing for the appellant contended that the policy then pertaining to the the offending vehicle was an act only policy. At the same time, it is submitted by the learned counsel for the appellant-insurance company that, as can be seen it from the policy documents, additional premium was collected for the purpose of giving risk coverage to the owner/ driver by receiving an additional premium of Rs.100/- and for the purpose of giving coverage to non-fare paying passenger to the maximum of Rs.75,000/- an additional premium was collected. As noticed herein before, as per the award in O.P. (M.V.) No.1105 of 2003, the injured claimant therein, viz., the first respondent in the former appeal was granted only an amount of Rs.73,980/-. In such circumstances, there can be no doubt with respect to the position that the quantum of compensation as per the award passed therein, cannot be said to be exorbitant, warranting an interference on that ground. But, at the same time, the contention of the learned counsel for the appellant is that the injured-claimant is not entitled to get compensation as he was only a gratuitous passenger in the said vehicles which is a goods vehicle and therefore, the policy in question would not cover his risk. In short, in such circumstances M.A.C. A. No. 2286 of 2007, C.O. No.32 of 2008 in M.A.C.A. No. 2286 of 2007 & M.A.C.A. No.767 of 2010 4 the appellant is not liable to indemnify the insured owner of the said vehicle, in respect of the amount awarded in O.P.(M.V.)No.1105 of 2003. The learned counsel relied on the decision of the Honourable apex court in _**New India Assurance Company Ltd. v. Asharani [2003 (1) KLT 165]**_ to buttress the said contention. It is also contended therein that no additional premium was collected to cover the risk of a second person and therefore the Tribunal ought to have exonerated the appellant insurer from the liability to indemnify the insured owner of the said vehicle as regards the compensation payable to the claimant in O.P. (M.V.) No.1105 of 2003. In M.A.C.A. No.2286 of 2007 also, virtually the appellant took up the same contentions. In other words, it is contended that the deceased was also a gratuitous passenger in the vehicle. In such circumstances, the Tribunal had gone wrong in saddling the liability on the appellant, to indemnify the insured owner. That apart, it is contended that even if it is held that appellant is liable to indemnify the insured owner for the compensation payable for the death of Mariaraj, it should be limited to the amount payable in terms of the provisions under the Workmen's Compensation Act (for short 'the Act'). The learned counsel appearing for the claimants in both the appeals as also the learned counsel appearing for the owner of the offending vehicle countered the contentions M.A.C. A. No. 2286 of 2007, C.O. No.32 of 2008 in M.A.C.A. No. 2286 of 2007 & M.A.C.A. No.767 of 2010 5 and submitted that the Tribunal had rightly fastened the liability to indemnify the insured owner, on the appellant and it requires no interference. 3. In the light of the rival contentions involved a question of importance arises for consideration in M.A.C.A.No. 2286 of 2007. The question is when a labourer/ employee got injury arising out of and in the course of his employment due to the negligence of the driver of the vehicle that caused the accident whether compensation could be limited to an amount admissible under the Workmen's Compensation Act, 1923 or whether the claimant would be entitled to get compensation payable under the provisions of the Motor Vehicles Act (hereinafter referred to as 'the M.V. Act'). This question is no more res integra. It is virtually answered in the affirmative by the Honourable Apex Court in the decision in _**Ramachandra v. Regional Manager, United India Assurance Company Ltd. [AIR 2013 (SC) 2561].**_ The Honourable Apex Court held therein that the compensation could not be limited to the amount admissible under the Workmen's Compensation Act. The Apex Court held that in such circumstances, virtually, the question whether the claimant is also entitled to compensation under the Motor Vehicles Act would depend upon the terms and conditions of the policy in question. The Apex Court went M.A.C. A. No. 2286 of 2007, C.O. No.32 of 2008 in M.A.C.A. No. 2286 of 2007 & M.A.C.A. No.767 of 2010 6 on to hold in cases where the owner remained ex parte and the insurance company established by leading evidence at the initial stage itself before the Tribunal that it is the owner of the vehicle who is liable to pay the amount, then the amount payable over and above the amount payable in terms of the provisions of 'the Act' has to be the liability of the insured owner. However, in such cases, the insurer could be called upon to satisfy the award, but with the liberty to recover it from the owner in subsequent proceedings. In short, merely because the injured employee or the legal heirs of the deceased employee choose a Claims Tribunal as the forum instead of the commission under 'the Act' the entitlement of the claimant, to receive the quantum of compensation could not be limited to the amount payable under 'the Act', if he/ they are otherwise entitled to compensation payable under the M.V. Act. Bearing in mind the position of law enunciated as above, we will proceed to consider the appeals. ## **M.A.C.A. No.2286 of 2007** . The said petition arises from the judgment and award in O.P. (M.V.) No.77 of 2004. The claimants were the widow, minor children and the mother of one Mariaraj, who lost his life in the accident in question. In the claim petition, it was claimed that he M.A.C. A. No. 2286 of 2007, C.O. No.32 of 2008 in M.A.C.A. No. 2286 of 2007 & M.A.C.A. No.767 of 2010 7 was an employee of owner of the offending vehicle viz., Kurisumala Ashram. The said fact is not disputed as can be seen from the written statement filed on behalf of the 2[nd] respondent in the claim petition, the owner of the offending vehicle. Virtually in the written statement, the 2[nd] respondent admitted the fact that the deceased Mariaraj was an employee of the Kurisumala Ashram and on that fateful day, he was asked to accompany the driver of the said vehicle to purchase cattle feed from Kambam. Thus, it is obvious that Mariaraj, who was an employee of the Kurisumala Ashram was asked to accompany the said vehicle for the purpose of the owner of the said vehicle i.e. to fetch cattle feed for the Ashram. When that be the circumstances, the question is whether the 2[nd ] respondent could disown the liability, if the accident in question had occurred due to the negligence of the driver of the vehicle in question. In this case, after analyzing the evidence on record, the Tribunal had arrived at the conclusion that the accident in question had occurred due to the rash and negligent driving on the part of the first respondent who was driving the vehicle in question. The first and 2[nd] respondent, who are respectively the driver and owner of the the offending vehicle had not chosen to prefer any appeal despite such a finding entered into by the Tribunal. Even in the captioned appeal preferred by the 3[rd] respondent insurer of the said M.A.C. A. No. 2286 of 2007, C.O. No.32 of 2008 in M.A.C.A. No. 2286 of 2007 & M.A.C.A. No.767 of 2010 8 vehicle, there is no challenge against the said finding. No cross objection is also filed by the driver or owner of the offending vehicle. In the said circumstances, it can be safely taken that the finding of the Tribunal had rightly entered into the finding that the cause of the accident is the rash and negligent driving of the first respondent. 2. The averments taken up by the 2[nd] respondent, the owner of the offending vehicle, referred to hereinbefore, would reveal that he had given consent rather directed his own employee, Mr. Mariaraj to accompany the vehicle in question for the purpose of the Ashram. It is a fact that the vehicle in question is a three seater. In other words, besides the driver, there are seats for accommodating two passengers. From the pleadings narrated hereinbefore, it is evident that Mariaraj was asked to accompany the vehicle so as to purchase cattle feed from Kambam in Theni, essentially for the purpose of the owner. In such circumstances, he would definitely be fall under the expression 'authorised representative' of the owner of the vehicle. Then the next question is whether he would fall under the expression 'employee of the owner of the goods vehicle'. If the answer is in the affirmative, necessarily the insurer has to indemnify the insured owner for the injury or death sustained to said employee of the owner of the M.A.C. A. No. 2286 of 2007, C.O. No.32 of 2008 in M.A.C.A. No. 2286 of 2007 & M.A.C.A. No.767 of 2010 9 goods vehicle, in the light of the provisions under Section 147 of the Motor Vehicles Act. In the case on hand, the precise case of the claimants, who are the legal heirs of the deceased Mariaraj is that he was an employee of the Kurisumala Ashram of the 2[nd] respondent in the claim petition. In the written statement filed in the said claim petition, this fact was not at all disputed and in fact the 2[nd] respondent would admit the said facts. The 2[nd] respondent in an unambiguous terms stated that the deceased Mariaraj was the employee of the Ashram and on the date of the accident, he was authorized to accompany the vehicle for the purpose of purchasing the cattle feed from Kambam in Theni. No evidence to controvert the said position was adduced by the appellant herein. In such circumstances, with respect to the employee-employer relationship between the deceased Mariaraj and the 2[nd] respondent, the evidence on record would reveal that such relationship was in existence and further that the accident arose out of his employment and in the course of his employment In the light of the uncontroverted position obtained in the case, the appellant cannot wriggle out of its liability to cover the risk of such an employee in the light of the terms and conditions of the policy in question as also in the light of the provisions under Section 147(1) of 'the M.V.Act'. The Tribunal had assessed the compensation payable strictly in M.A.C. A. No. 2286 of 2007, C.O. No.32 of 2008 in M.A.C.A. No. 2286 of 2007 & M.A.C.A. No.767 of 2010 10 accordance with the provisions under the Workmen's Compensation Act which is renamed as 'Employees Compensation Act'. In the claim petition, it was averred that the deceased was being paid an amount of Rs.4,000/- per month towards wages. But in the written statement, according to the employee, he was being paid Rs.100/and food on all days' of engagement. For calculation purpose, the amount being paid for a single day of engagement was taken as Rs.125/- and it was also taken that he was being engaged for a period of 26 days in a month. In short, in the written statement, it was also admitted the fact that he was being engaged for the past 10 years. For the purpose of paying compensation, in such circumstances, his monthly income is taken as Rs.3,250/-. Going by the provisions under Section 4 of 'the Act', in cases where death results from injury/ injuries, the amount payable under 'the Act' should be equal to 50% of the monthly wages of the deceased workman multiplied by the relevant factor. For the purpose of such computation, 50% of Rs.3250/-, i.e. Rs.1,625/- is taken. The deceased was then aged 29 years. In view of Schedule under the Act, the factor which is applicable with reference to the age of the deceased is 209.92. However, the Tribunal wrongly identified the factor applicable as 209.79. This will stand corrected as 209.92. In such circumstances, the compensation payable under 'the Act' M.A.C. A. No. 2286 of 2007, C.O. No.32 of 2008 in M.A.C.A. No. 2286 of 2007 & M.A.C.A. No.767 of 2010 11 would come to Rs. 3,41,120/-. On account of the mistake in identifying the proper factor, the Tribunal quantified the amount payable as Rs.3,40,908/-. As noticed hereinbefore, it is the occurred due to the mistake crept in the matter of identifying the proper factor. Therefore, the amount payable stands corrected to Rs.3,41,120/- instead of Rs.3,40,908/-. We have already noted that the learned counsel appearing for the cross objectors, the claimants in O.P. (M.V.) No.77 of 2004 submitted that they do not wish to pursue with the cross objection filed for enhancement of the quantum of compensation. In the said circumstances, the appeal against the award passed by the Tribunal in O.P. (M.V.) No.77 of 2004, subject to the re-fixation of the quantum of compensation as mentioned above, stands dismissed. ## **M.A.C.A.No.767 of 2010** This appeal arises from the judgment and award in O.P. (M.V.) No.1105 of 2003. As noticed herein before, as per the impugned award, the Tribunal had granted an amount of Rs.73,980/- as compensation. The award is challenged on the ground that the claimant was not entitled to get compensation as he was only a gratuitous passenger in the goods vehicle. True that if he was only a gratuitous passenger in a goods vehicle, in the light M.A.C. A. No. 2286 of 2007, C.O. No.32 of 2008 in M.A.C.A. No. 2286 of 2007 & M.A.C.A. No.767 of 2010 12 of the dictum laid down by the Apex Court in Asharani's case _(supra),_ he is not entitled to get compensation. But, at the same time the question is whether he could be considered as such. The tenability of the said contentions has to be considered by taking into account certain other aspects. In the case on hand, it is evident from the policy of document that additional premium was collected for non-fare paying passenger. Therefore, in the light of the terms and conditions of the policy, he would be entitled to get compensation. The precise case of the claimant, who was examined as 'PW1' before the Tribunal was that he was asked to accompany in the said vehicle by the deceased Mariaraj on being entrusted to take such a person by the 2[nd] respondent, the owner of the vehicle. The first respondent, who is the driver of the vehicle or the 2[nd] respondent, who is the owner of the vehicle was not examined before the Tribunal. True that in the written statement filed by the 2[nd] respondent, the 2[nd] respondent denied the factum of such authorization. But, at the same time the testimony of 'PW1' was not controverted by the respondent. In other words, the substantive evidence before the Tribunal is that of the oral testimony of 'PW1', which cannot be outweighed by the pleadings of the 2[nd] respondent in the written statement. Going by the same, he was asked to accompany in the vehicle for the purpose of fetching M.A.C. A. No. 2286 of 2007, C.O. No.32 of 2008 in M.A.C.A. No. 2286 of 2007 & M.A.C.A. No.767 of 2010 13 cattle feed from Kambam Theni by Mariaraj, on being authorized in that regard. That apart, in this case, it is to be noted that additional premium was collected by the appellant insurer for a non-fare paying passenger. This fact is not at all disputed and in fact it is indisputable in the light of Ext.B1, which is the policy document in question. When additional premium was collected to cover the risk of non-fare paying passenger, certainly the injured claimant is entitled to get that compensation as he would fall under the expression 'any person' appearing in the proviso in the explanation to Section 147 (1) proviso of 'the M.V. Act'. In such circumstances, we do not find any reason to hold that he was a gratuitous passenger to disentitle him from claiming compensation. In fact, his entitlement was upheld by the Tribunal and the Tribunal found him entitled to get a compensation of Rs.73,980/-. Then it is to be held that the Tribunal had rightly arrived at the conclusion that he is entitled to get compensation. Then, the only question is whether the said quantum of compensation is exorbitant warranting an interference. There is no reason to hold that the amount granted to him is exorbitant and in fact only an amount of Rs.73,980/- was granted by the Tribunal as compensation for the injuries sustained. He sustained intra articular fracture of distal end of left radius. He was treated with wound debridement, suturing and closed reduction M.A.C. A. No. 2286 of 2007, C.O. No.32 of 2008 in M.A.C.A. No. 2286 of 2007 & M.A.C.A. No.767 of 2010 14 of the fracture. Relying on Ext.A4 disability certificate the Tribunal found that there was mal-united fracture and wrist movements are terminally restricted. As per the same, his disability was assessed as 10% and the Tribunal had accepted it and assessed his permanent disability as 10%. In such circumstances, we do not find any reason to interfere with the award in O.P.(M.V.).No.1105 of 2003. In the result, M.A.C.A.Nos. 2286 of 2007 and 767 of 2010 are dismissed. The Cross Objection is dismissed as not pressed. Before parting with the case, we think it appropriate to place on record the able assistance given by Adv. Neethu Prem to this Court, to resolve the question involved in the former appeal. There will be no order as to costs in these appeals. ## **C.T. RAVIKUMAR JUDGE** ## **B. SUDHEENDRAKUMAR JUDGE** RKM