Sajid v Subash, Roby KuriaKose and Oriental Insurance Company Ltd.

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN ``` ``` FRIDAY, THE 3[RD] DAY OF FEBRUARY 2023 / 14TH MAGHA, 1944 ``` ## `MACA NO. 1928 OF 2009` ``` AGAINST THE AWARD DATED 06.11.2008 IN O.P(MV) NO.168/2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA ``` ## `- APPELLANT/CLAIMANT :` ``` SAJID S/O PAREETH, INCHAKATTIL HOUSE, ERATTUPETTAKARA, ERATTUPETTA VILALGE ``` ``` BY ADV SRI.V.K.MOHAMMED YOUSUF ``` ## `RESPONDENTS/RESPONDENTS :` ``` 1SUBASH S/O MOHAN, KUPPAMALAYIL HOUSE, PERINGULAM P.O. 2ROBY KURIAKOSE S/O KURIAKOSE PUNNATHANATHU HOUSE, POONJAR SOUTH P.O. 3THE MANAGER, ORIENTAL INSURANCE COMPANY LTD., KOTHAMANGALAM. ``` ``` BY ADV SRI.GEORGE CHERIAN THIRUVALLA ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03.02.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 1928 OF 2009 ``` ``` 2 ``` ## `C.JAYACHANDRAN, J` ``` ------------------------------------ M.A.C.A.No.1928 of 2009 -------------------------------------- Dated this the 03[rd] day of February, 2023 ``` ## `J U D G M E N T` ``` 1.This appeal is preferred by the claimant in O.P.(M.V) No.168/07 of the Motor Accident Claims Tribunal, Pala, challenging the common award in the said Original Petition, along with another, dated 06.11.2008. The Tribunal found that Ext.B1 Policy issued by the 3[rd] respondent/insurance company is void for reason of suppression of material facts. Accordingly, the Tribunal quantified the compensation awarded and directed the same to be recovered from respondents 1 and 2, who are the driver and owner respectively of the offending vehicle, a jeep. The accident occurred on 06.11.2006, when the jeep collided ``` ``` MACA NO. 1928 OF 2009 ``` ``` 3 ``` ``` withanautorickshawinwhichthe ``` ``` claimant/appellant was travelling. ``` ``` 2.Heard Sri.V.K.Mohammed Yousuf on behalf of the appellant and Smt.K.S.Santhi on behalf of the respondent respondent/insurance company. Perused the records. ``` ``` 3.Having heard the learned counsel appearing for both sides, this Court is not in a position to endorse the findings in the learned Tribunal in treating Ext.B1 Policy as void. Primarily, ``` ``` this Court notices that apart from a contention ``` ``` being taken in the written statement and ``` ``` production of Exts.B1 to B3, no further evidence has been adduced by the 3[rd] respondent/insurance company to substantiate that Ext.B1 Policy is ``` ``` null and void for suppression of material facts. The suppression of facts is alleged in the context that the vehicle in question was in fact a commercial vehicle/a stage carriage, which fact was suppressed from the notice of the insurance company, with the result, the insurance company ``` ``` MACA NO. 1928 OF 2009 ``` ``` 4 ``` ``` happened to issue an ‘Act only Policy’. It is the contention of the insurance company that if the relevant fact was brought to their notice, they would not have issued the Policy on the same terms as it was issued in the case of a private motor car. The Tribunal has presumed suppression of facts, without considering a corresponding duty on the part of the insurance company to verify the records before the issuance of the Policy. ``` ``` 4.It is true that Ext.B2 certificate of ``` ``` registration refers to a date, i.e.19.04.1994, ``` ``` and the class of vehicle was a motor car initially. The same was changed to a motor cab “M/Cab” with effect from 18.08.2005. Ext.B3 would ``` ``` indicate that a permit in respect of a contract carriage was issued, the period of validity being from 19.08.2005 to 18.08.2010. Thus, it would appear that the vehicle/jeep, which was ``` ``` originally registered as a private motor car, was subsequently converted as a contract carriage ``` ``` MACA NO. 1928 OF 2009 ``` ``` 5 ``` ``` with effect from 18.08.2005. However, this Court notices that barring Exts.B1, Exts.B2 and B3, which are photostat copies, no evidence is forthcoming to substantiate suppression. A suppression, as would go to the root of the matter to render a document void, has not been proved. This, coupled with the fact that the insurance company failed to perform its duty to cross-check the records, including registration particulars before the issuance of the Policy, would dissuade this Court from upholding the contention of the insurance company. ``` ``` 5.In such circumstances, the suppression alleged has not been established by adducing necessary evidence, so as to render Ext.B1 Policy ``` ``` void. At best, the Tribunal could have allowed recovery of compensation from the owner and driver of the offending vehicle on the basis of the so called suppression, which prima facie appears from Exts.B1 to B3. The finding of the Tribunal that Ext.B1 Policy is void for ``` ``` MACA NO. 1928 OF 2009 ``` ``` 6 ``` ``` suppression of material facts is hereby set aside. This Court also considers the fact that the appellant/injured is a neutral third party, who is not supposed to be aware of the niceties of the validity of the insurance policy, especially when the issuance of the Policy admitted in the written statement. ``` ``` 6.Coming to quantum, the learned counsel for ``` ``` the appellant would point out that the Tribunal has reckoned the notional income at Rs.3,000/- per month, which is grossly insufficient. Even in the case of a casual labourer, going by the index available in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [2011 KHC 4675], a monthly income of Rs.5,500/- has to be reckoned. This submission is well found and this Court reckons the monthly income at Rs.5,500/-. It was then contended that the correct multiplier which ought to have been applied is 18, as against 17 applied with the Tribunal, the age of the claimant being 21 years ``` ``` MACA NO. 1928 OF 2009 ``` ``` 7 ``` ``` at the time of accident. This submission is also liable to be accepted. As against loss of earnings, the Tribunal has reckoned a period 2 months only. This Court chose to reckon the loss of earnings for a period of 3 months, after going ``` ``` through the medical records; and the compensation under the head has to be calculated at the rate of Rs.5,500/- per month. Going by the records, the claimant was an inpatient for a period of 9 days and he is entitled to bystander's expenses and extra nourishment, both calculated at the rate of Rs.200/- per day. Finally, under the head ‘pain and suffering’, the Tribunal has granted only Rs.15,000/-. On perusal of paragraph No.14 of the award, which indicates the extent of the injury suffered by the claimant, a compensation for Rs.25,000/-, under the head pain and suffering is quite justified. ``` ``` In the result, this M.A.C.A is allowed and the compensation amount payable to the claimant/appellant is reworked as indicated in ``` ``` MACA NO. 1928 OF 2009 ``` ``` 8 ``` ## `the table here below.` |`the`|`table here below.`||| |---|---|---|---| |`Sl.`<br>`No.`|`Head of Claim`|`Amount`<br>`awarded`<br>`by the`<br>`Tribunal`|`Total amount`<br>`after`<br>`enhancement in`<br>`appeal`| |`1`|`Medical Expenses`|`3,200`|`3,200`| |`2`|`Loss of earnings`|`6,000`|`16,500`<br>`(Rs.5,500x3)`| |`3`|`Bystander expenses`|`1,500`|`1,800`<br>`(Rs.200x9)`| |`4`|`Extra nourishment`|`250`|`1,800`<br>`[200 x 9]`| |`5`|`Damages to clothing`|`250`|`250`| |`6`|`Transport to Hospital`|`1,000`|`1,000`| |`7`|`Pain and Suffering`|`15,000`|`25,000`| |`8`|`Permanent partial`<br>`disability resulting`<br>`in loss of earning`<br>`capacity`|`57,120`|`1,66,320`<br>`(5,500X12X18X14%)`| |`9`|`Loss of amenities`|`15,000`|`15,000`| ||`Total`|`99,320`|`2,30,870`| |`Amount enhanced = Rs.2,30,870 – Rs.99,320/ =`<br> `Rs.1,31,550/`|||| ``` MACA NO. 1928 OF 2009 ``` ``` 9 ``` ``` 7. The Insurance Company shall pay interest for the amount awarded by the Tribunal at the rate directed in the impugned award; and for the enhanced amount, at the rate of 7% from the date of petition. If any amount has already been paid, the same shall be granted set off. The claimant shall produce the details of the Bank account before the Insurance Company/Tribunal within two months from the date of receipt of a certified copy of this judgment and amount shall be transferred to the Bank account directly through NEFT/RTGS mode, within a period of one month thereafter. If the Bank account is not given within the time stipulated, it is made clear that, no interest shall run on the enhanced amount after the period stipulated by this Court. However, if the Insurance Company fails to deposit the amount, as directed, interest on the enhanced amount shall also run at the rate ordered by the Tribunal from the date of petition. The 3[rd] respondent/insurance company is ``` ``` MACA NO. 1928 OF 2009 ``` ``` 10 ``` ``` held liable and they are directed to deposit the compensation amount within a period of three months from the date of receipt of a copy of this judgment. It is clarified that the 3[rd] respondent/insurance company will give at liberty to recover the amount from respondents 1 and 2, the driver and owner of the offending vehicle respectively. ``` ``` The appeal is allowed to the above ``` ``` extent. ``` ``` Sd/- ``` ``` C.JAYACHANDRAN ``` ``` JUDGE ``` SMA