Pushpa v. Rajeswaran & Others (MACA Nos. 4269/2017 & 2298/2022)

MACA.Nos.4269/17 & 2298/2022 1 ## _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A._ _TUESDAY, THE 19[TH] DAY OF DECEMBER 2023 / 28TH AGRAHAYANA,_ _1945_ ## _MACA NO. 4269 OF 2017_ _AGAINST THE ORDER/JUDGMENT OPMV 1349/2008 OF MOTOR ACCIDENT_ _CLAIMS TRIBUNAL, ALAPPUZHA_ ## _APPELLANT/PETITIONER:_ _PUSHPA,_ _KALLAMPALLIL VEEDU, VELLAMKULANGARA MURI, HARIPPAD P.O._ _BY ADVS. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.P.J.JOE PAUL_ ## _RESPONDENTS/RESPONDENTS:_ - _1 RAJESWARAN, 11-9/9-/1, THAIPILA VILAI, VELLAMCODE, CHITHRAL P.O., KANYAKUMARI, TAMIL NADU – 623 153._ _2 SELVARAJ, CHANNAVILA PUTHENVEEDU, KUNNATHUKAL,PARASALA, THIRUVANANTHAPURAM- 695502 (ERRONEOUSLY SHOWN AS PALAKKADU IN THE AWARD)_ - _3 THE NEW INDIA ASSURANCE CO.LTD., REPRESENTED BY ITS BRANCH MANAGER,BRANCH OFFICE, ALAPPUZHA- 688 001._ _BY ADVS. BHAVANA VELAYUDHAN_ MACA.Nos.4269/17 & 2298/2022 2 _SRI.M.JACOB MURICKAN M.JACOB MURICKAN S.SANAL KUMAR T.J.SEEMA Dinesh Mathew J Murikan_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 19.12.2023, ALONG WITH MACA.2298/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ MACA.Nos.4269/17 & 2298/2022 3 _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. TUESDAY, THE 19[TH] DAY OF DECEMBER 2023 / 28TH AGRAHAYANA,_ ## _1945_ ## _MACA NO. 2298 OF 2022_ _AGAINST THE ORDER/JUDGMENT OPMV 1349/2008 OF MOTOR ACCIDENT_ _CLAIMS TRIBUNAL, ALAPPUZHA_ ## _APPELLANT/1ST RESPONDENT:_ _RAJESWARAN, AGED 35 YEARS, SON OF M.RUSSALIAN, 11-9/9/1 THAIPILA VILAI, VELLAMCODE, CHITHRAL.P.O., KANYAKUMARI, TAMIL NADU 629151, PIN – 629 151._ _BY ADVS. S.SANAL KUMAR T.J.SEEMA BHAVANA VELAYUDHAN_ ## _RESPONDENTS/PETITIONER & RESPONDENTS 2 & 3:_ _1 PUSHPA, KALLAMPALLIL VEEDU, VELLAMKULANGARA MURI, HARIPAD.P.O., PIN – 690 514._ _2 SELVARAJ, CHANNAVILA PUTHEN VEEDU, KUNNATHUKAL, PARASALA, PALAKKADU- 695502, PIN – 695 502._ - _3 NEW INDIA ASSURANCE COMPANY LTD., REPRESENTED BY ITS BRANCH MANAGER, BRANCH OFFICE,_ MACA.Nos.4269/17 & 2298/2022 4 _ALAPPUZHA, PIN – 688 011_ _BY ADVS. MANU SRINATH GEORGE VARGHESE(PERUMPALLIKUTTIYIL)(K/566/1996) NIMESH THOMAS(K/1324/2018) SHERIN EDISON(K/1094/2017)_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 19.12.2023, ALONG WITH MACA.4269/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ MACA.Nos.4269/17 & 2298/2022 5 ## **JUDGMENT** ## **[MACA Nos.4269/2017, 2298/2022]** Both these appeals arise from O.P. (M.V.) No.1349 of 2008, on the files of Motor Accident Claims Tribunal, Alappuzha. The said claim petition was filed by the appellant in M.A.C.A. No.4269 of 2017, seeking compensation for the injuries sustained in a motor accident that occurred on 01.01.2008. The appellant in M.A.C.A. No.2298 of 2022 was the driver of the vehicle involved in the accident, and he is challenging the liability imposed upon him. (For the sake of convenience, the parties in these appeals are hereinafter referred to based on their respective ranks in the claim petition). 2. The accident occurred when the scooter, ridden by the petitioner, was hit by a delivery van bearing Registration No.K.L.-2/J 3920 driven by the 1st respondent in the claim petition in a rash and negligent manner. Consequent to the accident, the petitioner sustained serious injuries, and she was taken to the Government Hospital, Haripad, from where she was referred to Medical College Hospital, Alappuzha. She MACA.Nos.4269/17 & 2298/2022 6 underwent treatment as an in-patient till 11.02.2009, and despite several surgical procedures, her right upper limb was immobilised. According to her, she was 37 years old at the time of the accident and was working as a Mahila Pradhan-cum-LIC agent with a monthly of Rs.20,000/-. As compensation, she claimed an amount of Rs.10,00,000/-. 3. The respondents 1 and 2, the driver and the owner of the vehicle, did not contest the matter, and they were set ex parte. The 3rd respondent, the insurer of the van, filed a written statement contending that there was no valid policy in existence as on the date of the accident. According to them, the policy they issued was based on a cheque issued by the registered owner towards the premium, which got dishonoured, and consequently, the policy stood cancelled as on the date of the accident. Therefore, they sought exoneration from the liability. Besides the contention, they also disputed the negligence and the quantum of compensation. 4. The evidence in this case consists of oral testimony of PW1, the petitioner herself, and as documentary evidence, Ext.A1 to A21 were marked from the side of the petitioner. The MACA.Nos.4269/17 & 2298/2022 7 respondents examined RWs 1 and 2, and Exts.B1 and B2 were marked. After the trial, the Tribunal came to the conclusion that the accident occurred due to negligence on the part of the driver of the van. As regards the liability, the Tribunal found that the 3[rd] respondent, being the insurer, was liable to pay the amount at the first instance and was entitled to recover the said compensation from the driver and the owner of the said vehicle, namely respondents 1 and 2 in the claim petition. The recovery right was granted to the 3[rd] respondent, due to the cancellation of policy consequent to the dishonour of the cheque issued towards the premium. The quantum of compensation was fixed as Rs.9,99,500/- and the 3rd respondent was directed to deposit the said amount along with interest @ 9% per annum from the date of petition till realisation with proportionate cost. It was also ordered that, upon satisfying the award, the 3[rd] respondent shall be entitled to recover the compensation from respondents 1 and 2. Challenging the order permitting the 3[rd] respondent to recover the compensation from the 1[st] respondent, he filed M.A.C.A.No.2298 of 2022, whereas seeking MACA.Nos.4269/17 & 2298/2022 8 enhancement of compensation, the petitioner has filed M.A.C.A. No.4269 of 2017. 5. Heard Sri.P.J.Joe Paul, learned counsel for the petitioner/appellant in M.A.C.A.No.4269 of 2017, Sri.S.Sanal Kumar, learned counsel for the appellant/respondent in M.A.C.A.No.2298 of 2022 and Sri.Dinesh Mathew J.Muricken, learned counsel for the 3[rd] respondent Insurance Company. 6. The 1[st] question to be considered in this case is with regard to the right granted to the insurance Company to recover the compensation awarded by the Tribunal from the 1[st] and 2[nd] respondents, which is under challenge in M.A.C.A.No.2298 of 2022. The learned counsel appearing for the 1[st] respondent, mainly contends that the finding of the Tribunal granting the right of recovery to the Insurance Company was not at all proper. It was pointed out that absolutely no materials were produced to show that, the intimation of the dishonour of the cheque as well as the cancellation of the policy, was served upon the insured or the authorities under the Motor Vehicles department. MACA.Nos.4269/17 & 2298/2022 9 7. The learned counsel for the Insurance Company would rely on the depositions of RW1 and RW2 to oppose the contention. On going through the materials placed on record, it can be seen that the documents that have been produced to substantiate the cancellation of the policy by the Insurance Company are Exts.B1 and B2. Ext.B1 is the copy of the policy, which contains an endorsement of cancellation. Ext.B2 is the intimation that the 3rd respondent received from the Indian Bank, Palakkad Branch, regarding the dishonour of the cheque issued by the registered owner of the vehicle towards premium, along with the memo showing the same. Of course, Exts.B1 and B2 would indicate that the cheque issued by the Registered owner was dishonoured, and consequently, the policy was cancelled. But the crucial question in relation to the adjudication of the liability of the Registered owner is whether the dishonour of the said cheque and the consequential cancellation of the policy were intimated to the insured. In this case, even though RW1 claimed that such an intimation was given to the insurer and the Motor Vehicles Department authorities, immediately after the receipt of the intimation of dishonour of the cheque, MACA.Nos.4269/17 & 2298/2022 10 there are absolutely no documents to substantiate the same. RW1 clearly conveyed the inability to produce the said documents during his cross-examination. Therefore, admittedly, no documents are available to show the intimation of the dishonour of the cheque and the consequential cancellation of the policy to the insured. Therefore, in the available records, there is nothing to show that the cancellation of the policy came into effect on the date of the accident since there is no evidence of intimation of the same to the insured prior to the date of the accident. As far as Ext.B2 is concerned, it is a communication issued by the Indian Bank, Palakkad, on 06.05.2016, in reply to the communication issued by the insurer, as per which the bank intimated the insurer that the cheque issued by the registered owner in this case was returned on 05.06.2007. Since there are no documents showing that the cancellation of the policy was intimated to the insured, it cannot be concluded that the policy stood cancelled as on the date of the accident. Hence, the contention of the Insurance Company to the effect that the policy issued in respect of the vehicle in question stood cancelled as on the date of the accident cannot be accepted. In the absence of MACA.Nos.4269/17 & 2298/2022 11 any documents indicating such cancellation as on the date of the accident, it has to be treated as a valid policy, with all the rights, liabilities and obligations arising from the same. Therefore, I am of the view that the right of recovery granted by the Tribunal to the 3[rd] respondent Insurance Company was not legally sustainable, and accordingly, it is set aside. 8. The next aspect relates to the quantum of compensation, which is the subject matter of M.A.C.A.No.4269 of 2017. The main contest is with respect to the quantum of compensation awarded under the head of disability and the consequential loss of earning power. The main contention raised by the learned counsel for the appellant in this regard is that the monthly income taken by the Tribunal was only Rs.6,000/-, which was on the lower side. The learned counsel relies on Exts.A10 to A13 and A16 to A21 to show the income the appellant received from her avocation as Mahila Pradhan and LIC Agent. Ext.A10 is the licence issued to her by the Insurance Regulatory Development Authority of India to act as an agent of LIC, whereas Ext.A13 was the appointment letter issued by the Government of India Small Savings Scheme as Mahila Pradhan. MACA.Nos.4269/17 & 2298/2022 12 Both the said documents clearly establish that she was working as Mahila Pradhan and LIC agent at the relevant time. Ext.A11 is the series of documents containing details of the earnings which she received as commission from LIC for the years 20052006 to 2014-2015. It can be seen that, in the year 2006-2007, the petitioner received an income of Rs.1,62,751/-. In 2007-2008, it was Rs.2,44,499/-. The following year, after the accident, the income was reduced to Rs.93,334/-. This would clearly indicate the impact of injuries sustained by the petitioner in the accident. Immediately before the accident, she earned an annual income of Rs.2,44,499/-, and there was a substantial reduction in her monthly income after the date of the accident. However, Ext.A18 income tax return would indicate that by the assessment year 2015-16, 2016-17, she again started to make an earning of amount more than Rs.2,00,000/-. However, a careful analysis of the data revealed from the said documents would clearly indicate a substantial reduction in the monthly income consequent to the injuries sustained in the accident. It is the specific case of the appellant that consequent to the accident, the movement of the right hand of the petitioner has been MACA.Nos.4269/17 & 2298/2022 13 restricted, which prevented her from riding the scooter, as she used to do before the accident and signing the necessary papers. Therefore, it was specifically contended by her that, after the accident, she had to depend upon her husband, who used to take her in his vehicle to meet the customers for selling policies. Consequently, her husband could not pursue his employment as an auto-rickshaw driver, which affected his earning capacity. 9. On careful scrutiny of the materials, I find that the said contention cannot be simply brushed aside. To substantiate the nature of the injuries sustained and consequential disability suffered by her, the medical records were made available, which convincingly prove the physical deformities of the petitioner. Therefore, I am of the view that the monthly income of Rs.6,000/- taken by the Tribunal is on the lower side. Ext.A11 and the other records produced by her, would certainly indicate her earning capacity as on the date of the accident. In the facts and circumstances of the case and the income shown in Ext-A11 series documents, I deem it appropriate to fix the monthly income as Rs.15,000/-. MACA.Nos.4269/17 & 2298/2022 14 10. The next aspect is relating to the percentage of disability. To establish the same, the petitioner relied on the ExtA16 disability certificate issued by the Medical Board constituted by the Superintendent of General Hospital, Alappuzha. As per the said certificate, the percentage of disability was certified as 90%. However, the Tribunal did not accept the same, mainly because of the reason that the said certificate is silent as to whether it was whole body disability or a disability with regards to a particular limb. But the nature of disability is clearly mentioned in the disability certificate as “brachial Plexus Injury only ring and little finger, having mild mobility. Muscles around shoulders wasted”. Thus, it is evident that the mobility of the right hand is almost lost and being a person engaged in the business of an L.I.C. agent, it will have serious ramifications. The learned counsel for the petitioner rightly pointed out that it has affected her mobility, and she has to depend upon the service of a third person, which is likely to incur expenses also. Therefore, functional disability owing to physical disability should be taken into consideration. Of course, it is true that, as rightly found by the Tribunal, a certificate issued by the Medical Board is silent MACA.Nos.4269/17 & 2298/2022 15 as to whether it is a whole body disability, and in the said circumstance, the physical disability is taken as 50%. On considering the nature of the disability and the impact that it can have on the nature of the avocation of the petitioner, I am of the view that while assessing the compensation, it should not be based on physical disability alone, but it should be on the functional disability, which would be higher. In the facts and circumstances of the case, I am of the view that, 70% should be taken as the functional disability to compute the compensation. 11. The next aspect highlighted by the learned counsel for the appellant is towards the future prospects. The learned counsel for the Insurance Company stoutly opposes the said contention by pointing out that, from Ext.A18, it can be seen that, eventually, she was able to bring back the business and more than Rs.2,00,000/- was earned during the assessment years 2015-16 and 2016-17. Therefore, it is pointed out that this would indicate that she was making a good annual income even after the date of the accident. Thus, the future prospects need not be considered, it was pointed out. Even though I find some force in the said contention, I am of the view that the claim for MACA.Nos.4269/17 & 2298/2022 16 future prospects cannot be ignored completely. A reduction in the mobility of the petitioner is a matter that would affect the business carried on by her, and it not only incurs additional expenses for availing the service of another person, but the pace at which she used to handle things will also be affected by it. Therefore, this will certainly affect her productivity as well as her potential. The possibility of her earning more amounts than she earned in the years 2015-16 and 2016-17 with the injuries, had she not met with the accident, cannot be ruled out. In such peculiar facts and circumstances, I find that, even though the future prospects at the rate as observed in **National Insurance Co. Ltd v. Pranay Sethi [2017 (4) KLT 662 (SC)]** , which is 40%, need not be taken, a reasonable addition is to be made. In the facts and circumstances of the case, I deem it appropriate to make an addition of 20% under this head. Thus, while reassessing the compensation for the loss of earning capacity owing to the physical disability suffered, the amount would come to Rs.22,68,000/- [(15000+20%)x12x15x70/100]. The amount already awarded by the Tribunal is Rs.5,40,000/- and thus, the additional compensation would come to **Rs.17,28,000/-** . MACA.Nos.4269/17 & 2298/2022 17 12. The learned counsel for the appellant further sought additional amount as reimbursement for the expenses incurred by her towards physiotherapy. It was pointed out that even to maintain her present physical condition, she had to undergo physiotherapy regularly. To substantiate the same, the learned counsel produced Annexure-1, a bill evidencing the same. Considering the nature of injuries, the necessity of physiotherapy cannot be ruled out. Therefore, I am of the view that an amount of Rs.1,00,000/- can be granted under the said head. Thus, the total additional compensation receivable by the appellant is determined as Rs.18,28,000/-. 9. In the light of the aforesaid observations and findings, both these appeals are allowed with the following orders. (1) The award dated 19.06.2017 in O.P(MV).No.1349 of 2008 passed by the Motor Accidents Claims Tribunal, Alappuzha, is hereby set aside to the extent it permitted the 3rd respondent to recover the amount of compensation awarded from the 1[st] and 2[nd] respondents. In the absence of evidence indicating the intimation of cancellation of the policy to the insured, the 3[rd] respondent is held liable to pay the compensation. MACA.Nos.4269/17 & 2298/2022 18 (2) The quantum of compensation is re-fixed as Rs.28,27,500/- (Rupees twenty eight eight lakhs twenty seven thousand and five hundred only). Out of the said amount the amount of Rs.27,27,500/- (Rupees twenty seven lakhs twenty seven thousand and five hundred only), shall be deposited by the 3[rd] respondent Insurance Company with interest at the rate of 8% per annum from the date of petition till realization. The remaining amount of Rs.1,00,000/- shall be deposited by the said insurer with interest at the rate of 8% per annum from the date of the award till realization. The said amount shall be deposited within a period of three months from the date of receipt of a copy of this judgment after adjusting the amounts already deposited. Sd/- **ZIYAD RAHMAN A.A. JUDGE** DG/20.12.23