P.V. VELSI v. Achamma George, John Mathew (Shibu) and The National Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **TUESDAY, THE 17TH DAY OF DECEMBER 2013/26TH AGRAHAYANA, 1935** ## **MACA.No. 1693 of 2009 ( )** **-------------------------(AGAINST THE AWARD IN OP(MV)NO. 2317/1998 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOTTAYAM DATED 17-07-2008)** **-----------------------------** ## **APPELLANT/PETITIONER IN OPMV.NO. 2317/98:** **------------------------------------------------------------------** **P.V.VELSI, WHITE HOUSE, PERUNNAI EAST P.O., CHANGANACHERRY, KOTTAYAM.** ## **BY ADV. SRI.P.M.NATESAN** ## **RESPONDENT(S)/RESPONDENTS IN OPMV.NO. 2317/98:** **--------------------------------------------------------------------------------** ## **1. ACHAMMA GEORGE,** ## **KUNNAMPALLILPARAMBIL, ALAMTHURUTHY, THIRUVALLA.** **2. JOHN MATHEW @ SHIBU, PANAKADU HOUSE, JACOBITE CHURCH, MUTHOOR, THIRUVALLA.** ## **3. THE NATIONAL INSURANCE CO. LTD., CHANGANACHERRY, REPRESENTED BY ITS BRANCH MANAGER.** **R2 BY ADVS. SRI.M.V.THAMBAN SRI.R.REJI** **SRI.B.BIPIN** **R3 BY ADV. SRI.RAJAN P.KALIYATH** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17-12-2013,LONG WITH MACA.NO.3103 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** S.SIRI JAGAN & K.RAMAKRISHNAN, JJ. ----------------------------------------------------------------M.A.C.A. No.1693 of 2009 & M.A.C.A. No.3103 of 2008 -----------------------------------------------------------------Dated this the 17[th] day of December, 2013 ## J U D G M E N T ## S. Siri Jagan, J These two appeals arise from the award of the Motor Accidents Claims Tribunal, Kottayam, in O.P. (M.V.).No.2317/1998. The claimant filed the O.P., claiming compensation for the injuries and consequential disability suffered by him, on account of an accident, caused by the negligent driving of a vehicle by its driver. The tribunal, after finding negligence on the part of the driver of the vehicle, awarded compensation under various heads as follows: |**Sl.**<br>**No.**|**Head of claim**|**Amount**<br>**awarded₹**| |---|---|---| |1|Medical expenses|1, 000| |2|Transportation to hospital|500| |3|Loss of earning|2, 500| |4|Extra nourishment|300| |5|Bystander expenses|600| |6|Damage to clothing|300| |7|Pain and suffering|15, 000| |8|Loss of amenities and inconvenience|10, 000| ||Total|30, 200| M.A.C.A. No.1693 of 2009 & M.A.C.A. No.3103 of 2008 2 2. The claimant has filed M.A.C.A. No.1693/2009, seeking enhanced compensation. M.A.C.A. No.3103/2008 is field by the insurance company, disclaiming liability to satisfy the award, on the ground that, on the date of accident, the driver of the vehicle did not have a valid driving licence and therefore there is breach of policy conditions. 3. We shall first consider the contention of the insurance company, regarding their liability to satisfy the award. The owner and the driver do not dispute the fact that, as on the date of accident, the driver did not have a valid driving licence to drive the vehicle. They also have no case that they had filed an application for renewal of the licence within thirty days of the expiry of the licence and consequent to the same, the licence was renewed retrospectively from the date of expiry. Admittedly, the driving licence was renewed long after the accident. That is only from the date of renewal and ## M.A.C.A. No.1693 of 2009 & M.A.C.A. No.3103 of 2008 3 as such, as on the date of accident, the driver did not have a valid driving licence. 4. Learned counsel for the driver relies on the decision of the Supreme Court in **National Insurance Company Ltd., v. Swaran Singh and Others [2004 (1) KLT 781 (S.C.)]** , for the proposition that, the mere absence of the driving licence alone is no ground to avoid liability of the insurance company. He also relies on the Full Bench decision of this court in **Oriental Insurance Company Ltd., v. Paulose [2004 (1) KLT 8 (F.B.)]** . According to the learned counsel for the driver, the insurance company should further prove that, the driver was disqualified from holding a licence, which alone would absolve the insurance company from liability. 5. On the other hand, the learned counsel for the insurance company would rely upon later decisions of the Supreme Court, namely, **Malla Prakasarao v. Malla** 4 M.A.C.A. No.1693 of 2009 & M.A.C.A. No.3103 of 2008 **Janaki and Others [I (2006) ACC 300 (SC)]** and **Ram Babu Tiwari v. United India Insurance Company Ltd., and Others [III (2008) ACC 776 (SC)]** , for the proposition that, when the vehicle involved in the accident was not driven by a driver having valid driving licence, absence of a valid driving licence is a valid defence on the part of the insurer under Section 149(2), on ground of breach of specific policy conditions. 6. After considering the arguments of both sides, we are inclined to agree with the counsel for the insurance company. The judgment in Swaran Singh's case (supra), is a judgment by a Bench consisting of three judges. The judgment in Malla Prakasarao’s case(supra) is also by a bench consisting of three judges. Subsequently, in Ram Babu Tiwari’s case(supra), a two judge bench of the Supreme Court also took the same view. Therefore, we are bound by the later decisions of the Supreme Court. Those decisions specifically hold ## M.A.C.A. No.1693 of 2009 & M.A.C.A. No.3103 of 2008 5 that, in the event of the driver not having a valid driving licence as on the date of accident, the insurance company is entitled to recovery rights from the owner. Therefore in this case also, the insurance company is entitled to that right. Accordingly, while upholding the award, directing the insurance company to pay the insurance amount to the claimant, we hold that, the insurance company is entitled to recover the amounts so paid to the claimant from the driver and owner of the vehicle. 7. We shall now come to the claim of the claimant for enhancement of compensation. The first contention raised by the claimant is that, the tribunal did not award any compensation for loss of earning capacity. The accident was on 03.10.1997. The claimant was a 46 year old university coach, drawing a monthly salary of ₹ 11,500/-. The disability certificate certified 10% disability. The tribunal did not award any compensation for loss of earning capacity is the first contention raised. ## M.A.C.A. No.1693 of 2009 & M.A.C.A. No.3103 of 2008 6 The second contention is that, the compensation awarded for pain and suffering and loss of amenities and inconvenience in life is too low. Lastly, it is contended that, although the appellant had produced Ext.A14 series of medical bills, the tribunal discarded the same on the ground that, the bills were dated between 11.09.2001 and 16.11.2002 and awarded only 1,000/- under that head,₹ which is also on the lower side. 8. Admittedly, despite the disability the claimant continued to be employed in the university as a coach, drawing the salary which he would have drawn, had he not suffered the disability, till the age of 60 years. As per the decision of the Supreme Court in **Sarla Verma** ## **v. Delhi Transport Corporation 2010 (2) KLT 802** **(SC)** , for a 46 year old person, the multiplier applicable is only 13. The date of retirement goes beyond the 13 multiplier period also. That being so, for the period of multiplier, the claimant does not lose any future earnings ## M.A.C.A. No.1693 of 2009 & M.A.C.A. No.3103 of 2008 **==> picture [7 x 9] intentionally omitted <==** whatsoever. That being so, as rightly held by the tribunal, the appellant is not entitled to any compensation for loss of earning power. 9. But we find that, the medical certificate certified 10% disability. That disability would affect his personal life to some extent. Considering the same, we are of opinion that the compensation for loss of amenities and inconvenience, the amount awarded as 10,000/- is₹ on the lower side. We enhance the same to 25,000.₹ 10. The tribunal awarded 15,000/- for pain₹ and suffering. Considering the injuries suffered by the appellant and the treatment undergone by him, we are inclined to enhance the same to 20,000/-. We are not₹ inclined to accept the contention of the appellant regarding medical expenses. The appellant has not produced any medical bills for treatment immediately after the accident in 1997. The bills produced were for the period between 11.09.2001 and 16.11.2002. The ## M.A.C.A. No.1693 of 2009 & M.A.C.A. No.3103 of 2008 8 claimant did not even go to the box to prove the same. There is no evidence to prove that, those medical expenses were incurred for treating injuries suffered by the claimant in the accident. Despite the same, the tribunal awarded 1,000/- towards medical expenses.₹ We are not inclined to interfere with the same. Despite the persuasive arguments of the learned counsel for the claimant, we are not inclined to enhance the compensation under any of the other heads. Consequentially, the claimant would be entitled to additional compensation of 20,000/-, over and above₹ what has been awarded by the tribunal. That amount would carry interest at the rate of 9% per annum from the date of the claim petition, till date of payment. The insurance company is directed to deposit that amount also within two months. 11. However, in view of the finding that the insurance company is entitled to recover the M.A.C.A. No.1693 of 2009 & M.A.C.A. No.3103 of 2008 **==> picture [7 x 9] intentionally omitted <==** compensation paid by them from the owner and driver for violation of policy conditions, we hold that the insurance company is entitled to recover the amounts paid by the insurance company to the claimant, pursuant to the award and pursuant to our judgment from the owner and driver of the vehicle. With the above modification of the impugned award of the tribunal, the appeal is disposed of. Sd/- S. Siri Jagan, Judge Sd/K. Ramakrishnan, Judge // True Copy // P.A. to Judge ss