Raveendran.K.G. v. Sanalkumar Karottuvannuattu Veedu; Emmanuel M.D. Mukalayil; The United India Insurance Co. Ltd.; Jayan Philip Mudukalil Veedu

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 25[TH] DAY OF JUNE 2021 / 4TH ASHADHA, 1943** **MACA NO. 17 OF 2012** ## **AGAINST THE JUDGMENT IN OP(MV) 2085/2006 OF MOTOR ACCIDENT CLAIMS** ## **TRIBUNAL ,KOTTAYAM, KOTTAYAM** ## **APPELLANT/PETITIONER:** RAVEENDRAN.K.G S/O.GOPALAN,KOLLAMPARAMBIL HOUSE, NEAR GOVT.H.S.S.,NEDUMKUNNAM PO,KOTTAYAM. BY ADVS. SRI.M.P.MADHAVANKUTTY SRI.GOKUL DAS V.V.H. ## **RESPONDENT/RESPONDENTS:** 1 SANALKUMAR KAROTTUVANATTU VEEDU,NEAR MAHADEVA TEMPLE,KONDOOR,THODINADU 686 123. 2 EMMANUEL.M.D MUKALAYIL,THALAYOLAPARAMBU,VAIKOM,ERNAKULAM 686 141. 3 THE UNITED INDIA INSURANCE CO.LTD. KOTTAYAM, REPRESENTED BY ITS DIVISIONAL MANAGER, DIVISIONAL OFFICE, KOTTAYAM, 686 001. 4 JAYAN PHILIP MUDUKALIL VEEDU,PADINJATTINKARA, MUTHOLI PO 686 597. BY ADVS. SRI.S.ARUN RAJ SRI.BABY THOMAS SRI.M.A.GEORGE SRI.GIGIMON ISSAC THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 25.06.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **MACA NO. 17 OF 2012** **2** ## **JUDGMENT** The petitioner in OP(MV) No.2085/2006 on the file of the Motor Accidents Claims Tribunal, Kottayam is the appellant. The respondents in the claim petition arethe respondents in the appeal. 2. The facts in brief in the claim petition, relevant for the determination of the appeal, are on 2.10.2005 while the appellant was accompanying the goods in a lorry bearing Reg.No.KL-4E 4869 driven by the 1[st] respondent through Mundamala – Uriyappadi road, while they reached the Mundamala junction, the lorry hit a stay wire attached to an electric post. The appellant was thrown on to the road and sustained serious injuries. The lorry was owned by the 2[nd] respondent and insured with the 3[rd] respondent. The additional 4[th] respondent is the subsequent transferee of the lorry. The appellant was treated at the Pushpagiri Medical College Hospital, Thiruvalla from 20.10.2005 to 14.11.2005 and **MACA NO. 17 OF 2012** **3** thereafter, at the Chest Hospital, Kozhikode from 25.11.2005 to 06.12.2005. The appellant was a Headload worker and Broker attached to the CITU Nedumkunnam and was earning a monthly income of Rs.5,000/-. The appellant sustained serious injuries and claimed compensation from the respondents, which he quantified at Rs.7,46,000/-, but limited to Rs.5,00,000/-. 3. The respondents 1 and 2 did not contest the proceedings and were set ex-parte. 4. The 3[rd] respondent-Insurance Company filed a written statement, inter alia, admitting that the lorry was covered by a valid insurance policy. However, it was contended that the appellant was a gratuitous passenger in the lorry and no additional premium was collected from the owner to cover the liability of a gratuitous passenger. The age, income and occupation of the appellant was also denied. The 3[rd] respondent prayed that the claim petition be dismissed as against it. 5. The appellant got himself examined as PW1 and **MACA NO. 17 OF 2012** **4** Exts.A1 to A17 were marked through him in evidence. The 3[rd] respondent produced and marked Ext.B1 – copy of the insurance policy. 6. The Tribunal, after analysing the pleadings and materials on record, by the impugned award allowed the claim petition, in part, by directing the respondents 1 and 2 to pay the appellant an amount of Rs.1,61,489/- with interest at the rate of 7.5% per annum and costs of Rs.3,000/-. The 3[rd] respondent was exonerated of its liability to indemnify the 2[nd] respondent. 7. Aggrieved by the exoneration of the 3[rd] respondent of its alleged liability to pay compensation to the appellant and the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 8. Heard Sri.M.P. Madhavankutty, the learned counsel appearing for the appellant/petitioner and Sri.Arun Raj, the learned counsel appearing for the 3[rd] respondent – insurance companty. 9. The questions that emanate for consideration in this **MACA NO. 17 OF 2012** **5** appeal are: (i) Whether the exoneration of the liability of the 3[rd] respondent is sustainable in law; and (ii) Whether the quantum of compensation awarded by the Tribunal is reasonable and just? 10. The version of the appellant in Ext.A17 F.I.S, recorded by the Koyipuram Police Station on the next day after the accident, is that, on 02.10.2005 while the appellant was travelling in the lorry along with Mohanan Pillai – the owner of the timber – who had authorised the appellant to purchase the timber on his behalf, the accident occured· Based on Ext.A17 F.I.S, Ext.A1 F.I.R was registered and, thereafter, Ext.A2 charge-sheet was filed before the Judicial First Class Magistrate Court-II, Pathanamthitta. 11. In the claim petition also, the specific case of the appellant was that he travelled in the cabin of the lorry accompanying the timber, and the vehicle hit the stay wire of an electric post causing injuries to him. 11. The defence of the 3[rd] respondent was that the appellant was a gratuitious passenger and hence was not **MACA NO. 17 OF 2012** **6** covered by Ext.B1 'Act only Policy'. 12. Sri.M.P.Madhavankutty strenuously argued that, as the appellant was an authorised representative of Mohanan Pillai, he was covered by Ext.B1 policy and could not be equated as a gratuitious passenger in view of Section 147 of the Motor Vehicles Act, 1988. 13. Per contra, Sri.Arun Raj, contended that, admittedly the owner of the goods was Sri.Mohanan Pillai who was also accompanying the goods and, therefore, there was no question of there being an authorised representative. He submitted that there was no error or illegality in the award in exonerating the insurance company from paying the compensation. Hence, the appeal be dismissed. 14. Section 147(1) of the Motor Vehicles Act, 1988 reads thus:- ## **“Requirements of policies and limits of liability-** - (1) In order to comply with the requirements of this - Chapter, a policy of insurance must be a policy which - (a) is issued by a person who is an authorised insurer; and - (b) insures the person or classes of persons specified in - the policy to th extent specified in sub-section (2) - (i) **against any liability which may be incurred by** **MACA NO. 17 OF 2012** **7** **him in respect of the death of or bodily injury to any person, including owner of the goods or his authorised representative carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place;** (ii) against the death of or bodily injury to any passenger or a public service vehicle caused by or arising out of the use of the vehicle in a public place: Provided that a policy shall not be required - (i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmen's Compensation Act, 1923 (8 of 1923) in respect of the death of, or bodily injury to, any such employee- (a) engaged in driving the vehicle, or (b) if it is a pubic service engaged as conductor of the vehicle or in examining tickets on the vehicle, or (c) if it is a goods carriage, being carried in the vehicle, or (ii) to cover any contractual liability. Explanation- For the removal of doubts, it is hereby declared that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of, the use of a vehicle in a public place notwithstanding that the person who is dead or injured or the property which is damaged was not in a public place at the time of the accident, it the act or omission which led to the accident occurred in a public place.” (emphasis given) 15. Section 147 (1) (i) of the Act extracted above, categorically states that the liability of an insurer is with respect to death or bodily injury to any person including the **MACA NO. 17 OF 2012** **8** owner of goods or his authorised representative carried in the motor vehicle. Therefore, the relevant words are 'owner of the goods or his authorised representative.” 16. In the case on hand, the appellant's own statement in Ext.A17, recorded on the following day of the accident, was that he and Sri.Mohanan Pillai -- the owner of the timber – were travelling in the cabin of the lorry. 17. In light of the unambiguous language used by the Parliament in Section 147(1)(i) of the Act and the statement given by the appellant in Ext A17, I am of the definite opinion that only the owner of the goods would stand covered by the policy and not the appellant. Only in the absence of the owner in the vehicle and there being an authorisation, could the appellant claim to be covered by the Act Policy, as the conjunction used in the above underlined statutory provision is 'or' and not 'and'. Therefore, I do not find any error in the impugned award exornerating the 3[rd] respondent to indemnify the 2[nd] respondent of his liability to pay the compensation. Hence, the said question is answered against the appellant. **MACA NO. 17 OF 2012** **9** 18. Now coming to the question of quantum of compensation awarded by the Tribunal. 19. The appellant had contended that he was a Headload worker--cum-Broker attached to the CITU, Nedumkunnam. He had claimed that he was earning a monthly income of Rs.5,000/-. The Tribunal fixed the notional income of the appellant at Rs.3,000/- per month. ## **Notional Income** 20. The Hon'ble Supreme Court in **Ramachanrappa Vs. Manager, Royal Sundaram Alliance Insurance Co. Ltd** [(2011) 13 SCC 236] and **Syed Sadiq v. Divisional Manager, United India Insurance Co. Ltd.** [(2014) 2 SCC 735 **],** has fixed the notional income of a coolie worker in the year 2004 at Rs.4,500/- per month and that of a vegetable vendor in the year 2007 at Rs.6,500/- per month, respectively. 21 Following the parameters laid down by the Hon'ble Supreme Court in the afore-cited decisions and considering the fact that the appellant was aged 49 years at the time of accident and he was a Head-load worker by profession, I am of **MACA NO. 17 OF 2012** **10** the considered opinion that the appellant's notional income can safely be fixed at Rs.5,000/- per month as claimed in the claim petition. Hence, I re-fix the notional income of the appellant at Rs.5,000/- per month. ## Loss of earnings 22. The Tribunal held that the appellant was incapacitated for a period of six months and awarded an amount of Rs.18,000/ under the head 'loss of earnings'. In view of the re-fixation of the appellant's income at Rs.5,000/-, the appellant is entitled for enhancement of compensation under the said head by a further amount of Rs.12,000/-, i.e. a total amount of Rs.30,000/-. ## **Bystander expenses** 23. The appellant had undergone hospitalisation for a period of 45 days. The Tribunal awarded only Rs.100/- per day towards bystander expenses, which according to me is meager. Hence, I re-fix bystander expenses at Rs.200/- per day, totalling to an amount of Rs.9,000/-. **MACA NO. 17 OF 2012** **11** ## Disability 24. Undisputedly, the appellant had not got himself examined by a Medical Board or examined the Doctor who issued Ext.A8 disability certificate. However, the Tribunal has fixed his disability at 5%. As there is no challenge against the said finding by the respondents, I concur with the disability fixed by the Tribunal. Nonetheless, in view of the re-fixation of the notional income of the appellant at Rs.5,000/- and his disability being 5% and the relevant multiplier being 13, instead of 11 fixed by the Tribunal, the appellant is entitled for compensation for permanent disability at Rs.39,000/-. ## **Other Heads of Claims** 25 With respect to the compensation under other heads of claim, the Tribunal has awarded reasonable and just compensation. 26. On an overall re-appreciation of the pleadings and materials on record and the law laid down in the afore-cited decisions, I am of the firm opinion that the appellant is entitled for enhancement of compensation as modified and re- **MACA NO. 17 OF 2012** **12** calculated above, and given in the table below for easy reference. |Sl.<br>No|Head of claim|Amount awarded<br>(in rupees)|Amounts<br>modified and<br>recalculated by<br>this Court| |---|---|---|---| |1|Transport to hospital|2,500|2,500| |2|Extra nourishment|2,000|2,000| |3|Damage to clothing|5,00|500| |4|Bystander expenses|4,500|9,000| |5|Medical expenses|79,189|79,189| |6|Loss of earnings|18,000|30,000| |7|Pain and suffering|25,000|25,000| |8|Compensation for permanent<br>disability|19,800|39,000| |9.|Loss of amenities|10,000|10,000| ||Total|1,61,489<br>========|1,97,189<br>=======| **MACA NO. 17 OF 2012** **13** In the result, the appeal is allowed in part, by answering question No.(i) against the appellant and answering question No.(ii) in favour of the appellant, by enhancing the compensation by a further amount of Rs.35,700/- with interest on the said amount at the rate of 7.5% per annum from the date of petition till the date of payment and proportionate costs. The appellant is permitted to realise the enahanced compensation with interest and costs from the 2[nd] respondent and his assets, in accordance with law. ma/25/6/2020 Sd/- **C.S.DIAS, JUDGE** ## **/True copy/**