Omana v. Rajendran Nair, Ajayakumar and Oriental Insurance Co. Ltd.

1 MACA No.1076 of 2011 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 24[TH] DAY OF NOVEMBER 2021 / 3RD AGRAHAYANA, 1943 MACA NO. 1076 OF 2011** **AGAINST THE ORDER/JUDGMENT IN OPMV 798/2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOLLAM** ## **APPELLANT/S:** OMANA, D/O.NANI, BEENA BHAVAN MANAKKARA MURI, SASTHAMCOTTA. BY ADV SRI.PRATHEESH.P ## **RESPONDENT/S:** - 1 RAJENDRAN NAIR, PRASHANTHI NILAYAM PARAKKODU P.O., EZHAKULAM, TEMPLE JUNCTION,, ADOOR691554. - 2 AJAYAKUMAR , S/O.KARUTHAKUNJU , DRIVER MUKKODIYILVILA VEEDU, SASTHAMCOTTA-690521. - 3 DIVISIONAL MANAGER, THE ORIENTAL INSURANCE CO.LTD., KARMEL COMPLEX, P.B.NO.11,, BANK ROAD, KAYAMKULAM-690502. BY ADVS. SRI.M.JACOB MURICKAN SRI.T.T.RAKESH **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 MACA No.1076 of 2011 ## **C.S.DIAS, J.** ## **====================== MACA No.1076 of 2011** **====================== Dated this the 24[th] day of November, 2021.** ## **JUDGMENT** The appellant was the petitioner in OP(MV) 798/2006 on the file of the Motor Accidents Claims Tribunal, Kollam. The respondents in the appeal were the respondents before the Tribunal. 2. The appellant had filed the claim petition under Sec.166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries that she sustained in an accident on 23.11.2003. It was her case that, while she was travelling in a jeep bearing registration No.KL-3C 1524 (jeep) through the Bharannikavu – Adoor road, due to the rash and negligent driving of the jeep by the second respondent, who abruptly applied the brakes of the jeep, the jeep overturned and the appellant sustained serious 3 MACA No.1076 of 2011 injuries. She was treated at the Maria Hospital, Adoor, the Government Hospital, Pathanamthitta and at the Medical College Hospital, Thiruvananthapuram, for a period of ten days. She suffered a compound fracture of the shaft of the right humerus, fracture of 3[rd] , 5[th] , 6[th] and 7[th] right ribs and fracture of the shaft of the right femur. The jeep was owned by the first respondent and insured with the third respondent. The appellant was a Tailor by profession and earning a monthly income of Rs.5,000/-. Hence, the appellant claimed a compensation of Rs.2,00,000/- from the respondents. 3. The respondents 1 and 2 did not contest the proceeding and were set ex parte. 4. The third respondent had filed a written statement refuting the allegations in the claim petition. It was contended that, the accident occurred only because the second respondent in his attempt to save the life of a 4 MACA No.1076 of 2011 pedestrian had to suddenly apply the brakes. Thereafter, the third respondent filed an additional written statement contending that the jeep was covered by an 'Act policy' and the appellant was a gratuitous passenger, therefore, the third respondent was to be exonerated . 5. The appellant got herself examined as PW1 and marked Exts A1 to A15 in evidence. The third respondent produced the insurance policy certificate, which was marked as Ext B1. 6. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition, in part, by permitting the appellant to realise from the first respondent – owner of the jeep, an amount of Rs.52,500/with interest and proportionate costs because the jeep was only covered by an 'Act policy' and that the appellant was a gratuitous passenger. 7. Dissatisfied with the quantum of compensation 5 MACA No.1076 of 2011 awarded by the Tribunal, the petitioner is in the appeal. 8. Heard: Sri.Pratheesh.P, the learned Counsel appearing for the appellant/petitioner, Sri.Rakesh T.T, the learned counsel appearing for the first respondent and Sri.Jacob Murikan, the learned counsel appearing for the third respondent – insurer. 9. The learned counsel appearing for the first respondent contended that, the first respondent had sold the jeep well prior to the accident. He has produced Annexure R1 (a) to substantiate his assertion. He prayed that the first respondent may be exonerated of the liability, and the registered owner may be directed to pay the compensation amount. ## **Negligence and liability** 10. Ext A5 final report filed by the Adoor Police in crime No.748/2003 substantiates that the accident occurred due to the negligence of the second respondent. 6 MACA No.1076 of 2011 Going by the uncontroverted pleadings in the claim petition, the first respondent was the owner and the third respondent was the insurer of the jeep. The respondents have not let in any contra evidence to discredit the final report filed by the Police. 11. On a reappreciation of Ext B1 insurance policy certificate, it is seen that it is an 'Act Policy'. Admittedly, the appellant was a gratuitous passenger travelling in the jeep. 12. This Court in **New India Assurance Co Ltd v. Daisy Paul [2021 (2) KHC 449]** relying on the decision of the Hon'ble Supreme Court in **New India Assurance Co. Ltd** **v. Asha Rani [2003 (1) KLT 165(SC)]** has held that the insurer is not liable to indemnify the liability of the gratuitous passenger travelling in a passenger vehicle covered by an 'Act Policy'. Therefore, the finding of the Tribunal that the third respondent is not liable to 7 MACA No.1076 of 2011 indemnify the first respondent of his liability to pay the compensation amount is correct and sustainable in law. 13. Even though the learned counsel appearing for the first respondent had made a fervent attempt, to bring to the notice of this Court that the first respondent had sold the vehicle prior to the accident, it is to be remembered that the first respondent had not contested the proceedings before the Tribunal and he was set ex parte. He has not even filed any written statement before the Tribunal. Therefore there is no foundation for the first respondent to make the said assertion, that too in the appeal filed by the petitioner for enhancement of compensation. If at all the first respondent is aggrieved by the finding in the impugned award, his remedy is to independently challenge the impugned award in a separate proceeding. Hence, I hold that it is the first respondent who is liable to pay the compensation 8 MACA No.1076 of 2011 amount as per the materials on record. ## **Notional Income** 14. The appellant had claimed that she was a Tailor by profession and earning a monthly income of Rs.5,000/-. However, the Tribunal, for the want of material, fixed the notional monthly income of the appellant at Rs.2,000/-. 15. The Hon'ble Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC** **236]** has fixed the notional income of a coolie worker in the year 2004 at Rs.4,500/- per month. 16. Following the yardstick in the aforecited decision and considering the fact that the accident happened in the year 2003, I re-fix the notional monthly income of the appellant at Rs.4,000/-. 9 MACA No.1076 of 2011 ## **Loss of earnings** 17. The Tribunal has found that the appellant was indisposed for a period of three months. Taking into account the serious injuries that the appellant had sustained and she was treated as an inpatient for a period of 10 days and also the fact that she was a Tailor by profession, I confirm the findings of the Tribunal that the appellant was indisposed for a period of three months. 18. In view of the refixation of the notional monthly income of the appellant at Rs.4,000/-, I refix the compensation for loss of earnings at Rs.12,000/-. ## **Disability** 19. The appellant had produced Ext A14 disability certificate issued by the Assistant Professor of orthopedics, Medical College Hospital, Thiruvananthapuram, to substantiate that the appellant has a permanent disability of 16%. However, the Tribunal 10 MACA No.1076 of 2011 for the reason that the appellant had not examined the Doctor who issued Ext A14, has fixed the permanent disability of the appellant at 10%. 20. In **Raj Kumar v. Ajay Kumar [2011 (1) KLT 620(SC)],** the Hon'ble Supreme Court has categorically held that, what needs to be looked into in a case of injury, is the functional disability of the injured – claimant. It is also observed that, if the Tribunal is dissatisfied with the disability certificate produced before it, the Tribunal is bound to refer the a duty injured-claimant to duly constituted Medical Board. 21. In the instant case, the Tribunal after marking and accepting Ext A14 disability certificate, without any demur or request from the respondents, ought to have accepted the disability certificate in its entirety, or if dissatisfied, referred the appellant to a duly constituted Medical Board. The course adopted by the Tribunal is 11 MACA No.1076 of 2011 erroneous and wrong. Hence, I set aside the finding of the Tribunal fixing the permanent disability of the appellant at 10%. 22. Following the ratio in **Raj Kumar** (supra), and considering the fact that the appellant was a Tailor by profession and she has a malunion of the shaft of the humerus, partial ankylosis of right shoulder with motion limited to 90 degrees and she has pain and weakness of her upper limb, I fix the functional disability of the appellant at 16%. ## **Multiplier** 23. As the appellant was aged 56 years at the time of the accident, following the law laid down in **Sarla Verma v. Delhi Transport Corporation [(2009) 6 SCC 121]** , the relevant multiplier is '9'. ## **Loss due to disability** 24. Taking into account the above mentioned factors, 12 MACA No.1076 of 2011 i.e., the monthly income of the appellant at Rs.4,000/-, the multiplier at '9' and her functional disability at 16%, I refix the compensation for loss due to disability at Rs.69,120/-, instead of Rs.19,200/- awarded by the Tribunal. ## **Loss of amenities** 25. Considering the fact that the appellant had sustained serious injuries, that she was indisposed for a period of three months, that she was treated as an inpatient for a period of 10 days and she has sustained a functional disability of 16%, I hold that she is entitled for a further amount of Rs.10,000/- under the head ' loss of amenities'. ## **Other heads of claim** 26. With respect to the other heads of claim, I find that the Tribunal has awarded reasonable and just compensation. 13 MACA No.1076 of 2011 27. On a comprehensive re-appreciation of the pleadings, materials on record and the law referred to in the afore-cited precedents, I hold that the appellant/petitioner is entitled for enhancement of compensation as modified and re-calculated above, and given in the table below for easy reference. |SI.<br>No|Head of claim|Amount<br>awarded by<br>the Tribunal<br>(in rupees)|Amounts<br>modified<br>and<br>recalculated<br>by<br>this<br>Court| |---|---|---|---| |1|Loss of earnings|6,000/-|12,000/-| |2|Transport to hospital|1,000/-|1,000/-| |3|Extra nourishment|1,000/-|1,000/-| |4|Medical expenses|3,714/-|3,714/-| |5|Bystander expenses|1,000/-|1,000/-| |6|Pain and sufferings|15,000/-|15,000/-| |7|Damage to clothing and<br>articles|500/-|500/-| |8|Loss of amenities|5,000/-|15,000/-| |9|Loss due to disability|19,200/-|69,120/-| ||Total|52,414/-<br>rounded as<br>Rs.52,500/-|1,18, 334/-| 14 MACA No.1076 of 2011 In the result, the appeal is allowed, in part, by enhancing the compensation by an amount of **Rs.65,834/-** (Rupees Sixty Five Thousand Eight Hundred and Thirty Four only) with interest on the said amount at the rate of 7% per annum from the date of claim petition till the date of deposit and a cost of Rs.5,000/-. The first respondent is ordered to deposit the enhanced compensation amount with interest and cost before the Tribunal within a period of sixty days from the date of receipt of a certified copy of the judgment. Immediately on the compensation amount being deposited, the Tribunal shall disburse the said amount to the appellant, in accordance with law. **==> picture [31 x 13] intentionally omitted <==** sks/24.11.2021 **C.S.DIAS, JUDGE**