Rajeena and Others v. Raveendran, Pradeep Kumar and ICICI General Insurance Company Ltd.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH ``` ``` FRIDAY, THE 11[TH] DAY OF NOVEMBER 2022 / 20TH KARTHIKA, 1944 MACA NO. 1742 OF 2012 ``` ``` AGAINST THE AWARD DATED 22.12.2011 IN O.P.(M.V) NO.665/2008 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM APPELLANTS/ADDITIONAL CLAIMANTS 2 TO 5: ``` - `1 RAJEENA, W/O.SHIBU, KOLLASSERRI VADAKATHIL, ALUMMOODU, KOLLAM-691 577.` - `2 FATHIMA (MINOR), D/O.SHIBU, KOLLASSERRI VADAKATHIL, ALUMMOODU, KOLLAM-691 577` - `3 SHAHUL HAMEED,KOLLASSERRI VADAKATHIL, ALUMMOODU, KOLLAM-691 577.` - `4 AMINA, KOLLASSERRI VADAKATHIL, ALUMMOODU, KOLLAM-691 577.` ``` BY ADVS.SRI.S.SANTHOSH KUMAR SMT.P.LISSY JOSE. ``` ## **`RESPONDENTS/RESPONDENTS:`** - `1 RAVEENDRAN, PULLIPACHA, KADAKKAL, KOTTARAKKARA, KOLLAM-691 536.` - `2 PRADEEP KUMAR, KAIPALLIYIL HOUSE, KURUMANDAL, PARAVOOR, KOLLAM-691 301.` - `3 ICICI GENERAL INSURANCE COMPANY LTD, GANGOTHRI LAND MARK, 3RD FLOOR, NEAR IRON BRIDGE, KOLLAM-691 001.` ``` BY ADVS. R3 BY SRI.R.AJITH KUMAR (128/84) ``` - `SRI.K.B.RAMANAND` ## **`THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN`** ``` FINALLY HEARD ON 16.09.2022, THE COURT ON 11.11.2022 DELIVERED THE FOLLOWING: ``` MACA No.1742 of 2012 -:2:- ## MARY JOSEPH, J. - - - - - - - - - - - - - - - - - - - - - - - M.A.C.A. No. 1742 of 2012 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 11[th] day of November, 2022 ## JUDGMENT This appeal is originated from an award passed by Motor Accident Claims Tribunal, Kollam (for short ‘the Tribunal’) on 22.12.2011 in O.P.(M.V.) No.665/2008. Parties to this appeal will be referred to hereinafter as petitioners and respondents in accordance with their status before the Tribunal. 2. On 27.06.2007 at 7.30 p.m. an Ambassador Car, bearing registration No.KL-2C/6400 proceeding from North to South through Nedumgolam – Paravoor Public Road, knocked down the petitioner who was standing on the western side of the road. The car was driven by the 2[nd] respondent in a rash and negligent manner and therefore the accident was occurred. Petitioner sustained injuries. He was taken to Royal Hospital, Chathannoor and therefrom was referred to Medical College Hospital, Thiruvananthapuram. MACA No.1742 of 2012 -:3:- 3. The 1[st] respondent is the registered owner of the offending vehicle and the third respondent is its insurer. Alleging that respondents 1 to 3 are jointly and severally liable to compensate the petitioner for the injuries sustained, O.P. (MV) No.665/2008 seeking for a sum of Rs.2,00,000/- as compensation was filed by the petitioner before the Tribunal. 4. During pendency of the petition filed as above, the petitioner died and therefore, his legal representatives were impleaded as additional petitioners 2 to 5. Respondents 1 and 2 did not turn up to contest the Original Petition, responding to the notice served on them from the Tribunal and therefore were declared ex parte. 5. Respondent No.3 entered appearance and written statement was filed raising contentions as follows : Petition is not maintainable. 1[st] respondent was expected to use the car only for private purpose. Suppressing the fact that the car is a commercial vehicle, insurance was obtained as it was a private vehicle from the 3[rd] respondent. The car was used by the insured as a tourist taxi at the relevant time of accident and MACA No.1742 of 2012 -:4:- thereby the terms and conditions of the policy were violated and for the reason, the 3[rd] respondent is not liable to indemnify the insured. The accident was not reported by the 1[st] respondent to the 3[rd] respondent. The amount claimed as compensation is excessive. 6. Additional petitioner No.1 was examined as PW1 and Exts.A1 to A11 were marked in evidence. 3[rd] respondent did not adduce any evidence. 7. The Tribunal on the basis of Exts.A1, A2, A4, A5, A6, A7 & A8 found the 2[nd] respondent responsible for the accident to occur by his rash and negligent driving and thus found that issue in favour of the petitioner. 8. Having found that the petitioners are entitled to get compensation, the Tribunal had fixed Rs.97,500/- as the quantum payable and directed the 3[rd] respondent insurer to indemnify the insured. The 1[st] respondent was issued with a direction at the instance of the 3[rd] respondent to produce the permit which the latter alleged in it’s written statement as lacking. He failed to produce it and for violation of a policy MACA No.1742 of 2012 -:5:- condition the Tribunal permitted recovery of the compensation amount, after depositing the compensation in favour of petitioners. 9. Original Claimant who preferred the Original Petition seeking compensation died and the legal heirs were brought on record as Additional Claimants 2 to 5 and they are now before this Court in the appeal on hand as appellants. Additional appellants respectively are the wife, minor daughter, father and mother of the deceased. Respondents are the registered owner, driver and insurer of the offending vehicle. The quantum of compensation awarded by the Tribunal is under challenge for the reason that it is inadequate, unjust and unreasonable. 10. It is contended by Sri.S. Santhosh Kumar, the learned counsel for the appellants that the Tribunal is erred in disallowing compensation under the head loss of earning and loss of amenities and enjoyments in life. According to him, the death of the injured during the course of proceedings before the Tribunal is not a reason to deny such claims. According to him, the monthly income taken as Rs.2,000/- by the Tribunal is on the MACA No.1742 of 2012 -:6:- lower side and Rs.3,000/-, if fixed as monthly income notionally, it would help the petitioners to get a just and reasonable compensation. According to him, the injured was in the hospital for 85 days with severe injuries sustained in the motor accident and therefore Rs.10,000/- ought to have been granted under the head bystander expenses by adopting Rs.100/- as the daily expense. The amount awarded as Rs.25,000/- under the head pain and suffering is also contended as disproportionate to the injuries sustained by the victim of the accident and therefore inadequate. The Tribunal is also contended as unjustified in awarding meagre sums as compensation under various heads. 11. The victim was aged 26 years and claimed to be a coolie worker at the relevant time when he met with the motor accident. He being a coolie worker is unable to prove his monthly income by any form of evidence. Accident being of the year 2007, this court finds justification in fixing Rs.6,500/- as the monthly income on the basis of the fixation by the Apex Court in Ramachandrappa vs. Royal Sundaram Alliance Insurance Co. Ltd. [(2011) 13 SCC 236]. True that deceased died during the MACA No.1742 of 2012 -:7:- pendency of the Original Petition before the Tribunal. But the legal heirs brought on record do not raise a claim there that the death was due to the injuries sustained in the accident. Therefore, the Tribunal went wrong in not awarding compensation for loss of earning. The injuries sustained by the victim include : “Fracture both bones of right leg Fracture and wound on the right thigh 1X1 cm Lacerated wound right foot near heel 3X2X1 cm.” The nature of injuries constrains this Court to take loss of earning for six months at the monthly rate of Rs.6,500/-. The injured being at hospital for treatment for 85 days and the accident being occurred in the year 2007, it is appropriate to take Rs.150/- per day for fixation of compensation respectively for bystander expenses and extra nourishment. Under the head damages to clothing this Court is inclined to award Rs.1,000/-. 12. As held by the Apex Court in Oriental Insurance Co. Ltd. v. Kahlon [2021 (4) KLT Online 1066 (SC)] the claimants being the legal heirs of the injured are dis-entitled to get compensation for pain and suffering and loss of amenities and MACA No.1742 of 2012 -:8:- enjoyments in life. Therefore, compensation is found payable only under the following heads: = Loss of earning 39,000/- (6500X6) = Damages to clothing 1,000/= Bystander expenses 12,750/- (85X150) Extra Nourishment = 12,750/- (85X150) Total = 65,500/====== 13. In the above reassessment, Rs.65,500/- (Rupees Sixty five thousand and five hundred only) is found payable additionally. Third respondent shall deposit Rs.65,500/- with interest at the rate of 7.5% per annum, from the date of filing of the Original Petition till the date of realisation, within 2 months from the date of receipt by it of a certified copy of this judgment. The amount stands awarded with interest by the impugned award, if not paid, shall also be paid within the period granted. 14. It was established by the 3[rd] respondent before the Tribunal that the offending vehicle involved in the accident was plying at the relevant time without a valid permit and in that context recovery of the additional compensation is also permitted MACA No.1742 of 2012 -:9:- from the 1[st] respondent after deposit of the same in favour of the petitioners. Appeal stands allowed accordingly. Sd/- MARY JOSEPH, JUDGE. ttb