P.V. Muhammed Musthafa v. Sharafudheen, Azeez and National Insurance Co. Ltd.

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ## `THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN` ``` THURSDAY, THE 23[RD] DAY OF MARCH 2023 / 2ND CHAITHRA, 1945 ``` ## `MACA NO. 1799 OF 2012` ``` AGAINST THE AWARD IN OPMV 2915/2002 OF MOTOR ACCIDENT CLAIMS TRIBUNAL & SPECIAL COURT FOR E.C. ACT CASES, THRISSUR ``` ## `APPELLANT/CLAIMANT:` ``` P.V.MUHAMMED MUSTHAFA S/O. P.A.VEERANKUTTY, PUTHEN PEEDIKAYIL HOUSE WADAKKANCHERY VILLAGE, KARUTHAKKAD DESOM, THALAPPILLY TALUK. BY ADVS. V.V.JOY LOWEL CHERIAN(K/000087/2007) ``` ## `RESPONDENTS/RESPONDENTS:` ``` 1SHARAFUDHEEN AGED 25 YEARS,S/O HASSAN PUTHEN PEEDIKAYIL HOUSE, WADAKKANCHERY VILLAGE KARUTHAKKAD DESOM, THALAPPILLY TALUK. 680 582. 2AZEEZ, S/O.HASSAN KULANGARA VALAPPIL HOUSE, WADAKKANCHERY VILLAGE THALAPPILLY TALUK. 680 582. 3NATIONAL INSURANCE CO. LTD. KOLLANNUR DEVASSY SMARAKA BUILDING, ROUND EAST THRISSUR. 680 001. ``` ``` SMT.DEEPA GEORGE-SC ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 23.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 1799 OF 2012 ``` ``` 2 ``` ## `JUDGMENT` ``` This matter is of the year 2012 and has not been admitted. However, both sides are ad idem that it can be disposed of, after being formally admitted, based on the undisputed evidence on record, handed over by them across the Bar. I, therefore, admit this Appeal and proceed to dispose it of finally, with the consent of both sides. ``` ``` 2.There are two issues impelled by the appellant in this appeal - which is filed impugning the Award of the Motor Accidents ``` ``` Claims Tribunal, Thirssur (‘Tribunal’ for ``` ``` short), in OP(MV) No.2915/2002. ``` ``` 3.The appellant was injured in a road ``` ``` accident on 30.08.2001, while the Jeep in which he was travelling as a passenger hit an electric ``` ``` MACA NO. 1799 OF 2012 ``` ``` 3 ``` ``` post, on account of the rash and negligent driving of its driver; and consequently suffered injuries. He, thereupon, filed the afore Original Petition seeking compensation of an amount of Rs.4,72,000/-, but which has been allowed only to a sum of Rs.1,43,600/-. He, ``` ``` therefore, assails the Award as being ``` ``` inadequate; and for the further reason that the learned Tribunal has exonerated the Insurance Company, which insured the offending vehicle, finding that the Insurance policy issued by it is an 'Act Only' one. ``` ``` 4.Sri.Lowel Cherian – learned counsel ``` ``` appearing for the appellant, vehemently argued ``` ``` that, since the learned Tribunal has already entered into a finding that the offending vehicle is a 'Motor Cab', within the ambit of ``` ``` Section 2 (25) of the Motor Vehicles Act, 1988, ``` ``` MACA NO. 1799 OF 2012 ``` ``` 4 ``` ``` the impact of Section 147 (b) (2) thereof ought to have been kept in mind, which makes it mandatory for such vehicles to have a policy to cover its passengers also. He argued that the learnedTribunal,however,missedthis ``` ``` completely and exonerated the insurance Company without proper reason. ``` ``` 5.Sri. Lowel Cherian, thereafter, argued ``` ``` that the compensation adopted by the Tribunal is also inadequate, which is primarily because, the notional income of his client has been reckoned to be mere Rs.2,000/-, even though there is evidence to show that he was earning Rs.5,000/- ``` ``` per month as a Businessman. He further submitted that, going by the gravity of injuries sustained by his client, the compensation under the heads 'Pain and Suffering' and 'Loss of Amenities' ought to have been much higher; while the sums ``` ``` MACA NO. 1799 OF 2012 ``` ``` 5 ``` ``` awarded for 'Extra Nourishment' and 'Bystander ``` ``` Expenses' are so exiguous, that it obtains no reasonable nexus with the trauma which he ``` ``` suffered, including being admitted and treated as an Inpatient for 42 days. He thus prayed that this appeal be allowed. ``` ``` 6.In response, Smt.Deepa George – learned ``` ``` Standing Counsel for the Insurance Company ``` ``` argued that there is nothing on record to show that the offending vehicle is a Motor Cab or a Taxi, as has been claimed; and that in the ``` ``` absence of the same, no liability can be cast upon her client, because the policy issued by them was only an 'Act Only' one. She thus ``` ``` prayed that this appeal be dismissed. ``` ``` 7.I have considered the afore submissions and have also gone through the evidence on record – copies of which have been handed over ``` ``` MACA NO. 1799 OF 2012 ``` ``` 6 ``` ``` across the Bar by the learned counsel for the parties, with the express consent that it can be acted upon by this Court without dispute. ``` ``` 8.As I have said in the prefatory ``` ``` paragraphs of this judgment, there are two ``` ``` issues impelled, namely, whether the Insurance ``` ``` Company is liable to honour the compensation as ``` ``` computed; and secondly, whether the amount now awarded by the Tribunal are just and fair. ``` ``` 9.I will first deal with the adequacy of ``` ``` compensation awarded by the Tribunal. ``` ``` 10.As rightly argued by Sri. Lowel Cherian ``` ``` – learned counsel for the appellant, the learned ``` ``` Tribunal has only adopted Rs.2,000/- as the ``` ``` notional income of the appellant, finding that ``` ``` there is no evidence on record to establish his avocation or monthly income. I find favour with these conclusions of the learned Tribunal; but, ``` ``` MACA NO. 1799 OF 2012 ``` ``` 7 ``` ``` in such event, it ought to have adopted the notional income on the basis of legally postulated standards. InRamachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Limited. [(2011) 13 SCC 236], the ``` ``` Hon’ble Supreme Court has declared that even in the case of a person who is a “Coolie”, or with an unascertainable income, in the year, 2004, the minimum income to be taken is Rs.4,500/-. Since the accident in this case happened in the year 2001, said figure has to be reduced at the rate of Rs.1,500/-, thus learning the income to be adopted being Rs.3,000/- per month. I see no ``` ``` reason to deny this to the appellant. ``` ``` 11.That said, when it is admitted that ``` ``` appellant was hospitalised for 42 days, the ``` ``` compensation awarded by the learned Tribunal under the head “Extra Nourishment” and ``` ``` MACA NO. 1799 OF 2012 ``` ``` 8 ``` ``` “Bystander's Expenses” is too low and I propose ``` ``` to revise it to Rs.150/- and Rs.200/- per day, taking note of the fiscal standards of the year 2001. ``` ``` 12.Moving on to the medical evidence on ``` ``` record, particularly Ext.A3 - Wound Certificate, they establish that the appellant had suffered ``` ``` the following injuries: ``` ``` “Flap like laceration 10x6x8 cm on right cheek, ``` ``` going into the mouth bone deep extending to midline of neck, irregular lacerated wound 20x10 cm on medical end of left clavicle, left clavicle brachae, ``` ``` pelysis injury”. ``` **==> picture [405 x 10] intentionally omitted <==** ``` documents relating to the injuries of the appellant, record that his “nerve vascular structure” was injured and a portion of his ``` ``` clavicle had to be removed, since he sustained ``` ``` MACA NO. 1799 OF 2012 ``` ``` 9 ``` ``` fracture to it, with a large gaping wound. Obviously, the appellant must have gone through extreme pain and suffering, at least during the period when the treatment lasted and his injuries healed. I, therefore, propose to enhance the compensation under the head “Pain and Suffering” to Rs.20,000/-; while that under the head “Loss of Amenities” to Rs.15,000/-. The compensation awarded under other heads are, in my view, apposite and does not require any modification. ``` ``` 14.Now, coming to the issue whether ``` ``` Insurance Company is liable to honour the amount ``` ``` of compensation quantified by the learned Tribunal and modified by this Court, it is without much of a doubt that the Policy of Insurance issued by them is an “Act Only” one. It is only if the appellant is able to ``` ``` MACA NO. 1799 OF 2012 ``` ``` 10 ``` ``` establish, through cogent and reliable evidence that the vehicle was a “motor cab” or “taxi”, can an argument under Section 147(b)(2) of the Motor Vehicles Act be impelled. Obviously, for this purpose, the first thing to be factually proved is that the vehicle is a taxi or a motor cab; but, I fail to understand how the learned Tribunal entered into a conclusion that it was so, without any evidence being available on record. ``` ``` 15.I am, therefore, of the firm view that ``` ``` the Original Petition will require to be ``` ``` remanded to the learned Tribunal for ``` ``` reconsideration of this issue, so that both ``` ``` sides can lead additional evidence, or produce additional documents, in substantiation of their view. ``` ``` In the afore circumstances, this appeal is ``` ``` MACA NO. 1799 OF 2012 ``` ``` 11 ``` ``` allowed in the following manner: ``` ``` a)The compensation under the head “Loss of Earning” is enhanced to Rs.18,000/-, from Rs.12,000/- awarded by the learned Tribunal, reckoning Rs.3,000/- to be the notional income of the appellant and taking six months as the period for the same. ``` ``` b) The compensation under the head “Pain and Suffering” is enhanced to Rs.20,000/-, from Rs.15,000/-, as awarded by the learned Tribunal. ``` ``` c)The compensation under the head “Loss of Amenities” is enhanced to Rs.15,000/-, from Rs.10,000/- as awarded by the learned Tribunal. ``` ``` d)The compensation under head “Extra Nourishment” is enhanced to Rs.6,300/-, ``` ``` reckoning the per diem expenses for the same to be Rs.150/- in the year 2011, for a period of 42 days of hospitalisation. ``` ``` MACA NO. 1799 OF 2012 ``` ``` 12 ``` ``` e)The compensation under the head “Bystander'sExpenses”isenhancedto Rs.8,400/-, reckoning Rs.200/- per day as expenses for the same, for 42 days of ``` ``` hospitalization. ``` - `(f) In all other heads, the compensation` ``` awarded by the Tribunal will remain unaltered. ``` - `(g) Consequently, the appellant will be at` ``` liberty to recover the said compensation, as enhanced by this Court, along with interest at the rate of 7% from the date of filing of the claim until it is realised. ``` - `(h) However, while calculating the interest` ``` on the enhanced amount as afore, the period of 1904 days - being the delay caused by the appellant in filing this appeal - shall stand excluded. ``` ``` MACA NO. 1799 OF 2012 ``` ``` 13 ``` ``` (i)The appellant will also be entitled to proportionate costs on the enhanced amounts, as ordered by the Tribunal. ``` ``` (j)The Original Petition is remanded to the ``` ``` learned Tribunal solely to reconsider the question whether the Insurance Company is responsible for honouring the afore compensation, which shall be done after affording both sides necessary opportunity of leading additional and fresh evidence and of further hearing; thus culminating in a Fresh ``` ``` Award on this issue, within a period of six months from the date of receipt of a copy of this judgment. For this purpose, the parties shall appear before the learned Tribunal at 11 A.M on 12.04.2023. ``` ``` After I dictated this part of the judgment, ``` ``` MACA NO. 1799 OF 2012 ``` ``` 14 ``` ``` Smt.Deepa George intervened to say that her client’s argument that, even if the vehicle is found to be a Taxi, they would still not be responsible to honour the same under the Policy, may also be allowed to be decided by the learned Tribunal. Of course, this issue is adjunct to the main one discussed above; and obviously, the learned Tribunal will have to consider the same also in the fresh Award. As a corollary to this, should the learned Tribunal finds that there is violation of the terms of Policy by the owner of the vehicle, then the right of recovery in favour of Insurance from him, is also left open to be considered. ``` ``` Needless to say, and merely by way of reiteration, should the learned Tribunal finds the Insurance Company responsible for the compensation, then necessary provisions for his ``` ``` MACA NO. 1799 OF 2012 ``` ``` 15 ``` ``` deposit and payment shall also be made in the Final Award. ``` ``` Sd/- ``` ``` DEVAN RAMACHANDRAN JUDGE ``` ``` lsn/SAS ```