Praveen P. N v Navas Mangarezhath u House, The Oriental Insurance Co Ltd, Sanjayan M S

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **& THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **MONDAY, THE 7TH DAY OF NOVEMBER 2016/16TH KARTHIKA, 1938** ## **MACA.No. 301 of 2014 ()** **------------------------** ## **AGAINST THE AWARD IN OPMV 1890/2008 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOTTAYAM DATED 18-02-2012** ## **APPELLANT(S)/PETITIONER:** ## **-----------------------** ## **PRAVEEN.P.N** **PUSHPA BHAVAN, PULINAKKAL BHAGOM, VELOOR P O, KOTTAYAM, PRESENTLY RESIDING AT KAROTTUTHARA HOUSE, PEROOR KARA(SNDP BHAGOM)PEROOR P O** ## **BY ADVS.SRI.G.SREEKUMAR (CHELUR) SRI.NANDAGOPAL S.KURUP** ## **RESPONDENT(S)/RESPONDENTS:** **--------------------------** ## **1. NAVAS MANGAREZHATHU HOUSE, THALAYOLAPARAMBU P O, VADAYAR, VAIKOM-686141** **2. THE ORIENTAL INSURANCE CO LTD KOTTAYAM** ## **3. SANJAYAN M S** ## **MAMBALATHU HOUSE, AYARKUNNAM P O, KOTTAYAM-686564** **R1 BY ADV. SRI.K.M.VARGHESE R2 BY ADVS. SRI.GEORGE CHERIAN (SR.) SMT.K.S.SANTHI** **SMT.LATHA SUSAN CHERIAN** ## **R3 BY ADV. SRI.RAJESH NAIR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07-11-2016, ALONG WITH MACA. 361/2015, MACA. 364/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SHG/** ## **C.T. RAVIKUMAR & K.P. JYOTHINDRANATH, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - M.A.C.A.Nos.301/2014, 361/2015 & 364/2015 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 7[th] day of November, 2016** ## **J U D G M E N T** ## **Ravikumar, J.** The captioned appeals are preferred against a common judgment and award passed by the Motor Accidents Claims Tribunal, Kottayam dated 18.2.2012 in O.P.(M.V.) Nos.1889/2008 and 1890/2008. MACA No.364/2015 is directed against the judgment and award to the extent it pertains to O.P.(M.V.)No.1889/2008 and the other appeals were preferred against the judgment and award in O.P. (M.V.)No.1890/2008. MACA 301/2014 has been preferred by the claimant seeking enhancement of the quantum of compensation fixed by the Tribunal thereon and MACA 361/2015 has been filed by the first respondent therein challenging the same to the extent liberty was granted to the insurer of the offending vehicle involved in the accident to recover the amount awarded thereunder from him after satisfying the award. Both the claim petitions germinated M.A.C.A.Nos.301/2014, 361/2015 & 364/2015 2 from the same occurrence. 2. O.P.(M.V.)No.1890/2008 was filed by the rider of the motorcycle bearing registration No.KL 05/X 8503 and O.P.(M.V.)No.1889/2008 was filed by the pillion rider on it. On 22.11.2007 at about 3.30 p.m. they were travelling along the Kottayam - Ettumanoor road from south to north and when they reached Athirampuzha Padinjattum bhagam the offending vehicle which is a goods autorickshaw bearing registration No.KL 05/U 6443 driven by the third respondent came from the opposite direction and dashed against their motorcycle. Consequently, both of them fell down and sustained grievous injuries. The injured persons were immediately taken to hospital and both of them remained as inpatient in the hospital for a number of days. It is in the said circumstances that the aforesaid claim petitions were filed under Section 166 of the M.V. Act seeking compensation for the injuries sustained. As noticed hereinbefore a common award was passed by the Tribunal in both the claim petitions and as per the same an amount M.A.C.A.Nos.301/2014, 361/2015 & 364/2015 3 of Rs.63,583/- was granted as against a claim of Rs.2 lakhs in O.P.(M.V.)No.1889/2008 and a compensation of Rs.3,76,295/- was granted in O.P.(M.V.)No.1890/2008. In both the claim petitions the amount awarded were ordered to carry interest at the rate of 7.5% per annum from the date of petition till realization. As noticed hereinbefore it is seeking enhancement of the quantum of compensation granted in O.P.(M.V.)No.1890/2008 that the claimant filed MACA 301/2014 and it is challenging the liberty granted to the insurer to recover the amount awarded in the said claim petitions after effecting payment to the respective claimants, from him that the first respondent in both the claim petitions preferred the other appeals against the respective awards. In such circumstances, these appeals were heard jointly and they are being disposed of by this common judgment. For the sake of convenience the parties are referred to hereafter in this judgment in accordance with their status before the Tribunal in the claim petitions unless otherwise specified. We have heard learned counsel M.A.C.A.Nos.301/2014, 361/2015 & 364/2015 4 on both sides. 3. Upon hearing the learned counsel on both sides, it is evident that in MACA Nos.361/2015 and 364/2015 the challenge is against the liability ultimately fastened on the appellant viz., the first respondent before the Tribunal holding that the insurer of the offending vehicle need only to satisfy the amount covered by the awards initially and could recover the amount paid in each case from the first and 3[rd] respondents therein. 4. The appellant in MACA Nos.361/2015 and 364/2015 who is the owner of the goods autorickshaw is not virtually challenging the award of compensation to the respective claimants and his grievance is against the right to recover granted to the insurer of his autorickshaw from him after paying the compensation in terms of the common award. According to him, the 3[rd] respondent before the Tribunal who is the 2[nd] respondent in MACA Nos.361 & 364 of 2015 and the 3[rd] respondent in MACA No.301/2014, ought to have been saddled with the ultimate liability to M.A.C.A.Nos.301/2014, 361/2015 & 364/2015 5 compensate the claimants and therefore, the right to recover granted to the 2[nd] respondent-Insurance Company ought to have been confined in respect of the 3[rd] respondent alone. The raison detre for the said contention is as follows: According to the first respondent-appellant he purchased the offending vehicle on hypothecation. Owing to the default committed in the matter of repayment he had to surrender the said vehicle to the financier. Subsequently, the financier transferred the ownership of the said vehicle without his junction. Owing to an oversight the ownership of the vehicle was admitted though, in troth, much prior to the accident the vehicle was surrendered to the financier and consequently its ownership was transferred in the name of the 3[rd ] respondent. In the appeal it is further stated that the vehicle in question had earlier involved in an accident at a time when the first respondent-appellant was its owner and the accident in question which led to the filing of the above mentioned claim petitions occurred subsequently. The confusion created in such circumstances and the M.A.C.A.Nos.301/2014, 361/2015 & 364/2015 6 oversight due to the bonafide mistake resulted in filing of the written statement sans such details regarding the change of ownership. In short, the contention is that as on 22.11.2007, the date of the accident, virtually the ownership of the offending vehicle was with the third respondent before the Tribunal and in fact he purchased the same from the financier pursuant its surrender. It is further contented that pursuant to such transfer of ownership necessary change of ownership was made in the relevant records maintained by the transport authorities in consonance with the statutory mandate. Therefore, the contention is that there is absolutely no justification to fasten liability on the first respondent/appellant and the entire liability ought to have been saddled on the third respondent who was actually the owner-cum driver of the autorickshaw at the relevant point of time. The third respondent who allegedly purchased the vehicle pursuant to the surrender of the offending vehicle by the appellant contended that in fact, even at the time of the accident the M.A.C.A.Nos.301/2014, 361/2015 & 364/2015 7 ownership of the said vehicle was with the appellant and he drove the vehicle on that fateful day only as its driver. Along with the appeal the first respondent has produced the registration particulars of the alleged offending vehicle which would prima facie reveal that the ownership of the vehicle in question stood transferred from him as early as on 13.6.2007 i.e. earlier then the accident. 5. The learned counsel for the 3[rd] respondent who allegedly purchased the same prior to the accident submitted that the said document carrying such particulars was not produced and proved before the Tribunal and and he had no occasion to verify the correctness of the entries made in the said document. Therefore it is submitted that to have an effective opportunity to all raise necessary contentions and to establish their respective cases in relation to the ownership by adducing evidence and consequential liability the matter may be remanded to the Tribunal. The learned counsel for the first respondentappellant also endorsed the said submissions. M.A.C.A.Nos.301/2014, 361/2015 & 364/2015 8 6. In the light of the rival submissions as referred to hereinbefore it is evident that none of the parties assail the correctness of the finding of the Tribunal regarding the violation of the policy conditions and the consequential order granting liberty to the second respondent-insurer to recover the amount awarded in the claim petitions after satisfying the awards. But the dispute is on the question as to from whom such recovery is to be made availing the right to recover granted by the Tribunal? In other words, the question is who is to be saddled ultimately, with the liability. In view of the nature of the dispute as disputatious and taking note the rival submissions, we are of the view that for ends of justice it is only proper to remand the matter to the Tribunal to decide those questions. Certainly we are of the view that going by the nature of the dispute to be resolved it is only proper and reasonable to afford an opportunity to both the first and third respondents to raise appropriate pleadings and also to adduce evidence in support of their respective contentions in relation to the M.A.C.A.Nos.301/2014, 361/2015 & 364/2015 9 aforesaid question alone. But at the same time we are of the view that before remanding the matter for the said exclusive purpose it is only appropriate to consider the claim of the claimant viz., appellant in MACA No.301/2014 for enhancement of compensation. 7. As noticed hereinbefore, the appellant in MACA No.301/2014 was the claimant in O.P.(M.V.)No.1890/2008. He was the rider of the motorcycle involved in the accident. As per the impugned award the Tribunal granted a total compensation of Rs.3,76,295/-. The learned counsel appearing for the appellant in the said appeal contented that the Tribunal disregarded certain relevant factors while fixing the monthly income of the appellant. The appellant was aged only 26 years at the time of the accident and the accident in question occurred on 22.11.2007. Nevertheless the Tribunal fixed only a meagre amount of Rs.3,500/- as his monthly income and the said erroneous fixation invites interference and modification in the light of the decision of the Hon'ble Apex Court in **Ramachandrappa v. Manager,** M.A.C.A.Nos.301/2014, 361/2015 & 364/2015 10 ## **Sundaram Alliance Insurance Company Limited** **[(2011) 13 SCC 236]** . It is submitted that even on the failure of the appellant to establish his averments regarding occupation and income in the light of the decision in **Ramachandrappa** 's case and taking note of the year of the accident and his age on the day of the accident the Tribunal ought to have fixed the monthly income above Rs.4,500/-. True that in **Ramachandrappa** 's case in respect of a coolie who met with an accident in the year 2004 the Hon'ble Apex Court fixed the monthly income as Rs.4,500/- notionally. Evidently, the accident in question occurred years thereafter. In such circumstances, there is substance in the contention of the appellant. Taking note of the fact that the accident in question occurred about four years since the accident involved in **Ramachandrappa** 's case and that the appellant was then aged 26 years, we are of the view that it is only just and proper to fix the monthly income as Rs.6,000/-. Accordingly it is fixed. Though the learned counsel for the appellant vehemently argued that the M.A.C.A.Nos.301/2014, 361/2015 & 364/2015 11 Tribunal also went wrong in assessing the permanent disability we are of the view that the said contention is devoid of any merit. Obviously, the appellant had not adduced any evidence to establish that the injuries sustained by him in the accident resulted in permanent disability. At the same time it is discernible from the impugned judgment that the appellant was present before the Tribunal and the Tribunal noted that his right leg was amputated from the right knee and artificial leg was fixed and he was on walker. It is in such circumstances that despite the failure on the part of the appellant's failure to adduce evidence to establish permanent disability the Tribunal took the percentage of permanent disability as 40%. Though it is not advisable and desirable to assess permanent disability without an expert opinion in that regard under normal circumstances taking note of the fact that the right leg of the appellant was amputated from the right knee we are of the view that the Tribunal had very correctly imbibed the spirit of the legislation in such an M.A.C.A.Nos.301/2014, 361/2015 & 364/2015 12 indubitable position of incurring of permanent disability by the appellant due to the injuries sustained in the accident and assessed it for calculation purpose. But at the same time, we have no hesitation to hold that in such given situation the appellant would not be justified in raising grievance against the assessment made by the Tribunal. In other words, we are maintaining the assessment made by the Tribunal. The appellant was aged 26 years and admittedly the multiplier was correctly identified by the Tribunal with reference to his age as 17. In such circumstances, compensation for permanent disability has to be reassessed only with substitution of monthly income fixed by us. On such reassessment the amount payable under the head 'compensation for loss of dependency' would be Rs.4,89,600/- (6000x12x17x40/100). But the Tribunal has already granted an amount of Rs.2,85,600/- under that head and in such circumstances after deducting the said amount the appellant is entitled to get an additional compensation of Rs.2,04,000/- under that head. The M.A.C.A.Nos.301/2014, 361/2015 & 364/2015 13 Tribunal took six months as the period for reckoning loss of earnings. Maintaining the said period but taking the modified monthly income for the said purpose the appellant would be entitled to get a proportionate enhancement of Rs.15,000/- under that head. It is granted. Taking note of the fact that the injuries sustained by the appellant in the accident ultimately resulted in amputation of his right leg from the right knee we are of the view that the compensation granted by the Tribunal towards loss of amenities viz., Rs.20,000/- is on the lower side. We are inclined to grant an amount of Rs.20,000/- more under that head. Despite persuasive argument of the learned counsel for the appellant-claimant we do not find any reason to hold that the appellant is entitled to get enhancement under any other head of compensation. In the light of the said discussion the appellant-claimant in MACA No.301/2014 is entitled to get an additional compensation of Rs.2,39,000/-. ## In the result: 8. M.A.C.A.No.301/2014 is allowed and an additional M.A.C.A.Nos.301/2014, 361/2015 & 364/2015 14 compensation of Rs.2,39,000/- is awarded. It will carry interest at the rate of 8% per annum from the date of petition till realisation. Since we are maintaining the order of the Tribunal directing the insurer of the offending vehicle to pay the awarded amount and to effect recovery thereafter, the second respondent insurance company viz., Oriental Insurance Company Limited shall deposit the additional compensation of Rs.2,39,000/- along with interest at the aforesaid rate from the date of petition till realization within a period of two months from the date of receipt of copy of this judgment. This appeal has been filed along with a delay of 585 days. As per order dated 20.9.2016 in C.M. Appl.No.338/2014 it was ordered while condoning the delay that the appellant-claimant would not be entitled to get interest for the period of 585 days in case enhancement of compensation is granted. In view of the said order it is made clear that the appellant would not be entitled to get interest for a period of 585 days. 9. M.A.C.A.Nos.361/2015 and 364/2015 are allowed M.A.C.A.Nos.301/2014, 361/2015 & 364/2015 15 in part. The common judgment and award in O.P.(M.V.) Nos.1889/2008 and 1890/2008 dated 18.2.2012 is set aside to the extent it cast ultimate liability to compensate the claimants therein, jointly on first and third respondents therein and in consequence thereof, granting the right to recover the amount of compensation paid in terms of the awards thereon, from first and second respondents. The common judgment and award in O.P.(M.V.)No.1890/2008 dated 18.2.2012 will also stand modified as regards the quantum of compensation in view of the enhancement granted as above. The matters are remanded to Motor Accidents Claims Tribunal, Kottayam to decide only on the question as to who among first and third respondents in O.P.(M.V.)Nos.1890/2008 and 1890/2008 is liable to face recovery at the hands of the second respondent-Insurance Company in view of the right to recovery granted by the Tribunal as per the common judgment and award dated 18.2.2012 or in otherwords, who among is to be fastened with the liability ultimately. The said question shall be M.A.C.A.Nos.301/2014, 361/2015 & 364/2015 16 decided after granting opportunities to both first and third respondents to make pleadings and also to adduce evidence in support of their respective pleadings. After effecting such payment the insurer will be at liberty to recover the amounts paid including the additional compensation granted as per this judgment without taking recourse to any separate independent proceeding for recovery of the amount, but certainly only after the outcome of the decision by the Tribunal to be taken pursuant to the remand in O.P. (M.V.)Nos.1889/2008 and 1890/2008 on the question of liability as mentioned hereinbefore. 10. Since the claim petitions are of the year 2008 the Tribunal shall dispose of the claim petitions as expeditiously as possible to enable the Tribunal to dispose of the matters expeditiously the parties shall appear before the Tribunal on 6.12.2016. Orders regarding refund of the statutory payments made by the appellant in MACA Nos.361/2015 and 364/2015 shall also be passed by the Tribunal, subject to he modified award now, to be passed. M.A.C.A.Nos.301/2014, 361/2015 & 364/2015 17 The parties shall bear their respective costs in all the above appeals. Sd/- **C.T. RAVIKUMAR JUDGE** Sd/- **K.P. JYOTHINDRANATH JUDGE** //True copy// P.A. TO JUDGE shg/