P. Moideen Kutty v. P. Basheer and The Branch Manager, National Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **THURSDAY ,THE 11TH DAY OF OCTOBER 2018 / 19TH ASWINA, 1940** **MACA.NO. 1284 OF 2011** **AGAINST THE AWARD IN O.P.(M.V.) NO.138/2003 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, KALPETTA DATED 30-08-2008** ## **APPELLANT/PETITIONER :** **P.MOIDEEN KUTTY, AGED 44 YEARS, S/O.UNNEENKUTTY,PARAMBAN HOUSE, CHOORALMALA, VELLARMALA POST, VYTHIRI TALUK.** **BY ADV. SMT.CELINE JOSEPH** ## **RESPONDENTS/RESPONDENTS :** **1 P.BASHEER , S/O UNNEENKUTTY, PARAMBAN HOUSE, CHOORALMALA,VELLARMALA POST, MEPPADI-673577, VYTHIRI TALUK,(DRIVER CUM OWNER OF KL-10F/727), (AUTO-RICKSHAW GOODS CARRIER).** **2 THE BRANCH MANAGER, NATIONAL INSURANCE COMPANY LTD., BRANCH OFFICE, KALPANA SHOPPING COMPLEX, MAIN ROAD,KALPETTA-673121.(INSURER OF THE VEHICLE BEARING NO.KL-10/F-727 AUTO-RICKSHAW-GOODS CARRIER)** **BY ADVS. SMT.M.R.JAYALATHA SRI.LAL GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 11.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **MACA.NO. 1284 OF 2011** **2** ## **JUDGMENT** This appeal is preferred against the award in O.P. (M.V.) No.138 of 2003 of the Motor Accidents Claims Tribunal, Kalpetta by the injured. On 07.03.2003 at 5.30 a.m., the appellant sustained injuries in a motor accident for that he filed a petition under Section 166 of the Motor Vehicles Act, 1988 and the Motor Accidents Claims Tribunal awarded compensation of Rs.30,928/- (Rupees Thirty Thousand Nine Hundred and Twenty Eight only) and directed the owner of the vehicle to satisfy the award, being aggrieved by that, the injured preferred this appeal. 2. It would be relevant and useful to mention the facts leading to the accident. Petitioner's case in the lower court was that on 07.03.2003 at 5.30 a.m., he was travelling in a goods vehicle KL-10/F-727 from Meppadi to Kalpetta as the owner of the goods, when he reached at the place of occurrence, the vehicle hit against a lorry which was parked on the side of the road, as a result he sustained serious injuries. In **MACA.NO. 1284 OF 2011** **3** the lower Court, R1 denied the negligence. R2 admitted the insurance of the vehicle, but contended that the owner cum driver violated the permit and policy conditions. Claimants evidence consists of oral testimony of PW1 and documentary evidence of Exts.A1 to A6. The disability certificate was marked as Ext.C1. Respondents evidence consist of documentary evidence of Exts.B1 and B2. 3. Apex Court in **Yadava Kumar** v. **D.M. National Insurance Co. Ltd. (2010 (8) SCALE 567)** Apex Court reiterated the principle in relation to the assessment of damages for personal injuries cases as follows: “ 17. While assessing compensation in accident cases, the High Court or the Tribunal must take a reasonably compassionate view of things. It cannot be disputed that the appellant being a painter has to earn his livelihood by virtue of physical work. The nature of injuries which he admittedly suffered, and about which the evidence of PW1 is quite adequate, amply demonstrates that carrying those injuries he is bound to suffer loss of earning capacity as a painter and a consequential loss of income is the natural outcome. 18. It goes without saying that in matters of determination of compensation both the Tribunal and the Court are statutorily charged with a responsibility of fixing a 'just compensation'. It is obviously true that determination of a just compensation cannot be equated to a bonanza. At the same time the concept of 'just compensation' **MACA.NO. 1284 OF 2011** **4** obviously suggests application of fair and equitable principles and a reasonable approach on the part of the Tribunals and Courts. This reasonableness on the part of the Tribunal and Court must be on a large peripheral field. Both the Courts and Tribunals in the matter of this exercise should be guided by principles of good conscience so that the ultimate result become just and equitable (See **Mrs. Helen C. Rebello and Ors. v. Maharashtra State Road Transport Corpn. and Anr.** MANU/SC/0621/1998: AIR 1998 SC 3191). 19. This Court also held that in the determination of the quantum of compensation, the Court must be liberal and not niggardly in as much as in a free country law must value life and limb on a generous scale (See **Hardeo Kaur and Ors. v. Rajasthan State Transport Corporation and Anr.** MANU/SC/0235/1992: (1992) 2 SCC 567). 20. The High Court and the Tribunal must realize that there is a distinction between compensation and damage. The expression compensation may include a claim for damage but compensation is more comprehensive. Normally damages are given for an injury which is suffered, whereas compensation stands on a slightly higher footing. It is given for the atonement of injury caused and the intention behind grant of compensation is to put back the injured party as far as possible in the same position, as if the injury has not taken place, by way of grant of pecuniary relief. Thus, in the matter of computation of compensation, the approach will be slightly more broad based than what is done in the matter of assessment of damages. At the same time it is true that there cannot be any rigid or mathematical precision in the matter of determination of compensation”. 4. In permanent injury case, the injured is entitled to **MACA.NO. 1284 OF 2011** **5** get higher income than that in death case. The object is to compensate the injured so far as money can compensate. When compensation is to be awarded for pain, suffering and loss of amenities in life, special circumstances of the claimant have to be taken into account. Amount of compensation for nonpecuniary loss is not easy to determine, but award must reflect that different circumstances have been taken into consideration. Learned counsel appearing for the appellant submitted that the appellant sustained fracture patella and the medical board assessed 4% permanent disability. The respondents have no dispute with regard to Ext.C1 disability certificate which corroborates the claim of the injured. Appellant was aged 36 years, who was a fish vendor and getting Rs.6,000/- per month but the learned Tribunal took the income of Rs.2,100/- for awarding compensation. Hence, in view of **Syed Sadiq and Others V. Divisional Manager, United India Insurance Company Limited ((2014) 2 Supreme Court Cases 735),** his monthly income is taken as Rs.5,000/- following amounts are awarded as enhanced **MACA.NO. 1284 OF 2011** **6** compensation. Pain and sufferings Rs.10,000/-, Loss of income for three months Rs.15,000/-. Learned Tribunal awarded Rs.2,000/- on that head, the balance is Rs.13,000/-. Extra nourishment Rs.2,000/-, Loss of amenities Rs.10,000/- and For permanent disability Rs.36,000/- (5000x12x15x4%). The Motor Accidents Claims Tribunal awarded Rs.16,128/- on that head and the balance is Rs.19,872/-. The total enhanced compensation is Rs.54,872/- (Rupees Fifty Four Thousand Eight Hundred and Seventy Two only). 5. The learned counsel appearing for the insurer contended that the appellant was a passenger in a goods autorickshaw and no goods were carried in the vehicle at the time of accident. He relied the reported decision in **United India** **Insurance Co. Ltd. v. Suresh [2008 (4) KLT 552 (SC)]** in which it was held that; On a plain reading of sub-cl.(i) of cl.(b) of sub-s.(1) of S.147, the words “carried in the vehicle” must be held to be qualifying “owner of the goods” or “his authorised representative”. The term 'any person' envisaged under the said provision shall not include any gratutious passenger. If the claimant had not been travelling in the vehicle as owner of the goods, he shall not be **MACA.NO. 1284 OF 2011** **7** covered by the policy of the insurance. In any view of the matter in a three wheeler goods carriage, the driver could not have allowed anybody else to share his seat. No other person whether as a passenger or as a owner of the vehicle is supposed to share the seat of the driver. Violation of the condition of the contract of insurance, therefore, is approved. The claimant was travelling for purchasing fish in the goods auto-rickshaw. It is admitted by both parties that there was no goods carried in the vehicle at the time of accident. As a fish vendor, he was proceeding to the fish market for purchasing fish and sustained injuries. Since no separate place is provided for the owner of the goods in a goods autorickshaw, appellant submitted that he was forced to travel along with the driver as the owner of the goods. The injured was travelling inside the cabin is the only point highlighted by the learned counsel appearing for the insurer. While adverting to that argument, both parties admitted that there was no seat provided for the owner of the goods in a goods auto-rickshaw but appellant travelled with the driver for purchasing fish, but for ascertaining the seating capacity, the RC particulars and permit documents were not produced by the owner or insurer **MACA.NO. 1284 OF 2011** **8** of the vehicle in the lower court. ## 6. Apex Court in **Manuara Khatun and Others v. Rajesh Kumar Singh And Others [(2017) 4 Supreme Court Cases 796]** held as follows: 17. The facts of the case at hand are somewhat identical to the facts of the case mentioned supra because here also we find that the deceased were found travelling as “gratuitous passengers” in the offending vehicle and it was for this reason, the insurance companies were exonerated. In **National Insurance Co. Ltd. v. Saju P. Paul [(2013) 2 SCC 41]** also having held that the victim was “gratuitous passenger”, this Court issued directions against the insurer of the offending vehicle to first satisfy the awarded sum and then to recover the same from the insured in the same proceedings. 18. The learned counsel for Respondent 3 (United India Insurance Co. Ltd) however, contended that the facts of the case at hand are not identical to the one involved in National Insurance Co. Ltd. v. Saju P. Paul [(2013) 2 SCC 41] and hence the law laid down therein cannot be applied to the facts of the case at hand. The learned Counsel pointed out that firstly, the awarded compensation in this case is quite substantial and secondly, it is not yet paid to the claimants. The learned counsel also submitted that since the question involved herein is referred to a larger Bench and hence this Court should not give such directions, as prayed by the appellants, against the insurance company. 19. We find no merit in any of the submissions. Firstly, as mentioned above, we find marked similarly in the facts of this case **MACA.NO. 1284 OF 2011** **9** and the one involved in **National Insurance Co. Ltd. v. Saju P. Paul [(2013) 2 SCC 41].** Secondly, merely because the compensation has not yet been paid to the claimants though the case is quite old (16 years) like the one in National Insurance Co. Ltd. v. Saju P. Paul [(2013) 2 SCC 41], it cannot be a ground to deny the claimants the relief claimed in these appeals. Thirdly, this Court has already considered and rejected the argument regarding not granting of the relief of the nature claimed herein due to pendency of the reference to a larger Bench as would be clear from para 26 of the judgment in National Insurance Co. Ltd. v. Saju P. Paul [(2013) 2 SCC 41]. That apart, the learned counsel for the appellants stated at the Bar that the reference made to the larger Bench has since been disposed of by keeping the issue undecided. It is for the reason also, the argument does not survive any more. 21. In view of the foregoing discussion, we are of the view that the direction to United India Insurance Co. Ltd. (Respondent 3)- they being the insurer of the offending vehicle which was found involved in causing accident due to negligence of its driver needs to be issued directing them (United India Insurance Co. Ltd. Respondent 3) to first pay the awarded sum to the appellants (claimants) and then to recover the paid awarded sum from the owner of the offending vehicle (Tata Sumo) Respondent 1 in execution proceedings arising in this very case as per the law laid down in para 26 of **National Insurance Co. Ltd. v. Saju P. Paul [(2013) 2 SCC 41].** Therefore the insurer has to satisfy the award and reimburse the amount from the owner. 7. Hence, the appellant is entitle to get enhanced **MACA.NO. 1284 OF 2011** **10** compensation of Rs.54,872/- (Rupees Fifty Four Thousand Eight Hundred and Seventy Two only). The direction of the Motor Accidents Claims Tribunal to satisfy the award by the owner of the vehicle is hereby set aside. The insurer is directed to satisfy the enhanced compensation of Rs.54,872/- (Rupees Fifty Four Thousand Eight Hundred and Seventy Two only) with 9% interest and proportionate cost in addition to Rs.30,928/(Rupees Thirty Thousand Nine Hundred and Twenty Eight only) awarded by the learned Tribunal within thirty days from the date of receipt of a copy of this judgment, failing which it will carry 12% interest from the date of default. Insurer is at liberty to reimburse the amount from the insured as per law. M.A.C.A is disposed of as above. Sd/- **P.D.RAJAN JUDGE** /True Copy/ P.A. To Judge NS