Reji v. Raju and The National Insurance Company Ltd.

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: BABU MATHEW P. JOSEPH
Judgment Date: 2014-06-06
Court Decision / Holding: The appeal is allowed in part. The court enhances medical expenses to Rs 2,500, increases pain and suffering to Rs 10,000, and adds Rs 5,000 for disability and discomfort, awarding an additional Rs 10,800 over the Tribunal award, with 9% interest from the date of petition. The insurer is directed to deposit the enhanced amount within two months. The court also clarifies that the insurer cannot recover the enhanced amount from the driver merely due to absence of a driving licence, in line with Swaran Singh.
Final Disposition: Appeal allowed in part.

Parties to the Case

Appellants / Petitioners

REJI AGED 42 YEARS S/O EKORAN

Respondents

RAJU S/O DEVASY
THE NATIONAL INSURANCE COMPANY LTD.

Legal Representation & Advocates

Counsels for Petitioners

• Sri.T.C.Sureh Menon
• Sri.A.R.Nimod

Counsels for Respondents

• Sri.M.A.George

Case Synopsis & Summary

Reji, a headload worker, sustained a comminuted fracture at the base of the fifth metatarsal and a lacerated wound in a motor accident involving autorickshaw KL8/A 7530 owned by the first respondent and insured by the second respondent. He filed MACA No. 420 of 2014 challenging an award of Rs 20,000 by the Motor Accidents Claims Tribunal, Thrissur, for loss of earnings, transport, nourishment, medical expenses, pain and suffering, and disability. The Tribunal held the accident occurred due to rash and negligent driving and assessed a notional income of Rs 3,000 per month. The appellant argued that the notional income and several heads of compensation were insufficient given the injury and its impact on earning capacity; he produced medical bills and contended for greater compensation. The insurer argued that the appellant had been adequately compensated, there was no proven disability affecting earning power, and the appeal should be dismissed. On perusal, the High Court enhanced certain heads: medical expenses from Rs 1,700 to Rs 2,500, pain and suffering from Rs 5,000 to Rs 10,000, and disability/discomfort by Rs 5,000, resulting in an extra Rs 10,800 over the Tribunal award, with 9% interest. The insurer was directed to deposit the enhanced amount and was not allowed to recover the amount from the driver for lack of a driving licence, per Swaran Singh guidance.

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that the Tribunal fixed a modest notional income and awarded amounts under several heads that do not reflect the severity of the injuries and the loss of earning capacity of a headload worker. He asserts that the medical expenses, pain and suffering, and the disability and discomfort heads were undervalued, given the comminuted fracture and the prolonged treatment. He submits bills showing actual medical expenditure and requests higher compensation for medical expenses, pain and suffering, and loss of earning power, arguing that the award should reflect the substantial impact on his ability to work.

Contentions of Respondents

The respondent insurer argues that the Tribunal properly compensated the appellant under heads claimed, and there is no proven disability affecting earning power. It contends that there is no basis to enhance compensation, citing lack of evidence of permanent disability and the absence of a causal link between any missing driving licence and the accident. It seeks dismissal of the appeal and confirmation of the Tribunal’s award.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
National Insurance Company Ltd. v. Swaran Singh	2004 (1) KLT 781 (SC)	Positive	Cited to support the proposition that insurer cannot seek recovery from the driver absent proven causation; used to prevent recovery from the first respondent and sustain indemnity by the insurer.

Extracted Judgment Text

Exact text extracted from official judgment records.

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH TUESDAY, THE 6TH DAY OF JUNE, 2014/16TH JYAISHTA, 1936 MACA.No. 420 of 2014 ------------------------ AGAINST THE AWARD IN OP(MV) 302/2006 of THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, THRISSUR. APPELLANT/PETITIONER : REJI AGED 42 YEARS S/O.EKORAN, RESIDING AT KADAVIL HOUSE, KURICHIKKARA PONGANAMKADU, THRISSUR DISTRICT. BY ADVS.SRI.T.C.SURESH MENON SRI.A.R.NIMOD RESPONDENTS/RESPONDENTS : ## 1. RAJU S/O. DEVASY, RESIDING AT ALAKKUPARAMBIL HOUSE ERAVIMANGALAM, NADATHARA, THRISSUR-680 751. ## 2. THE NATIONAL INSURANCE COMPANY LTD. KOLLANNUR DEVASSY SMARAKA BUILDING, ROUND NORTH THRISSUR-680 001. R2 BY SRI.M.A.GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 06-06-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **BABU MATHEW P. JOSEPH, J. = = = == = = = = = = = = = = = = = = M.A.C.A No. 420 of 2014 = = = = = = = = = = = = = = = = = = = Dated this the 6[th] day of June, 2014** ## **JUDGMENT** The appellant has sustained injuries in a motor accident involving an autorickshaw bearing Reg. No.KL8/A 7530 driven and owned by the first respondent and insured with the second respondent. He has filed a petition claiming `35,000/- as compensation for the injuries sustained in the motor accident, before the Motor Accidents Claims Tribunal, Thrissur. The learned Tribunal, after considering the matter, found that the accident had occurred due to the rash and negligent driving of the autorickshaw by the first respondent and awarded a total compensation of `20,000/(`19,200/- is rounded off to `20,000/-) under various heads MACA 420/2014 2 as follows: |Loss of earnings|` 6,000/-| |---|---| |Transport to hospital|` 500| |Extra nourishment|`500/-| |Damages to clothing|`500/-| |Medical expenses|`1,700/-| |Pain and suffering|`5,000/-| |Disabilityand discomfort|`5,000/-| Dissatisfied with the quantum of compensation awarded, the appellant has preferred this appeal. 2. Heard the learned counsel appearing for the appellant and the learned Standing Counsel appearing for the second respondent Insurance Company. 3. Learned counsel for the appellant submits that the amounts awarded by the Tribunal under various heads are insufficient. The appellant has sustained a serious fracture in the accident. He was a headldoad worker at the time of accident. The accident has caused disability to him and it MACA 420/2014 3 affects his earning power. He has undergone much pain and suffering as a result of the injuries suffered in the accident. Therefore, the appellant is entitled to more amounts under various heads as compensation. 4. Learned Standing Counsel for the second respondent submits that the appellant was amply compensated by the Tribunal under various heads. The claims now raised by the learned counsel for the appellant are without supported by any evidence. The appellant has not sustained any disability affecting his earning power. Therefore, he prays for dismissing this appeal. 5. The appellant has sustained comminuted fracture of the base of the 5[th] metatarsal of his right foot and a lacerated wound, 4x2 cm, on that foot. He was treated at the Medical College Hospital, Thrissur, after the accident. He was treated by applying Plaster of Paris Cast for the comminuted fracture. The appellant was a headload worker MACA 420/2014 4 at the time of accident. But, in the absence of any income certificate, the learned Tribunal fixed his monthly income notionally at ` 3,000/-. On considering the matter, the notional income thus fixed by the Tribunal does not require any interference. The amounts awarded under the heads of loss of earnings, transport to hospital, extra nourishment and damages to clothing also do not require any interference. The appellant has produced bills worth `1,670/- showing the medical expenses. On considering the nature of injuries suffered by the appellant and the medical bills produced, ` 2,500/- is awarded in the place of ` 1,700/awarded by the Tribunal under the head of medical expenses. The Tribunal awarded ` 5,000/- as compensation for pain and suffering. This is palpably low. The appellant has sustained comminuted fracture of the base of the 5[th] metatarsal of his right foot. The nature of fracture so suffered itself indicates that the appellant would have MACA 420/2014 5 undergone excruciating pain after the accident. Therefore, ` 5,000/- awarded under this head is enhanced to ` 10,000/-. The Tribunal has awarded `5,000/- towards compensation for disability and discomfort. On considering the nature of the fracture suffered by the appellant, it is probable that he would have sustained some disability affecting his efficiency and amenities of life justifying more compensation. Therefore, `5,000/- more is allowed under this head. Thus, the appellant is entitled to `10,800/(Rupees ten thousand eight hundred only) as compensation over and above the compensation already awarded by the learned Tribunal. The said amount of `10,800/- shall carry interest at the rate of 9% per annum from the date of filing of the petition till realisation. The second respondent Insurance Company is directed to deposit the amount within two months from today. MACA 420/2014 6 6. Learned counsel for the second respondent submitted that the Tribunal found in the award that the first respondent was not holding a valid driving licence for driving the autorickshaw. Therefore, the second respondent was directed to pay the compensation to the appellant and permitted the second respondent to recover that amount from the first respondent. Therefore, such a permission may be granted to the second respondent for recovering the amount awarded by this Court in this appeal from the first respondent. This cannot be permitted. The Tribunal has not entered a finding that the absence of driving licence for the driver has contributed to the cause of accident. Moreover, the second respondent has not even made an attempt to prove that the absence of a driving licence for the driver, in fact, has contributed to the cause of accident. Therefore, in this case, in the light of the ruling of the Honourable Supreme Court in National Insurance Company Ltd. v. MACA 420/2014 7 Swaran Singh [2004 (1) KLT 781 (SC)], the second respondent Insurance Company cannot be permitted to recover the amount allowed in this appeal and paid by the second respondent from the first respondent. They are liable to indemnify the first respondent. This appeal is allowed in part as above. Sd/- Sd/-- **BABU MATHEW P. JOSEPH JUDGE** ks & kns/- True copy P.S.To Judge MACA 420/2014 8 **BABU MATHEW P. JOSEPH JUDGE** ks.