SANTHA W/O LATE ARUMUGHAN v SATHYAN C.S. and SANJAYAN and THE ORIENTAL INSURANCE CO LTD

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **&** **THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR THURSDAY, THE 14TH DAY OF SEPTEMBER 2017 / 23RD BHADRA, 1939** **MACA.No. 1463 of 2013** **AGAINST THE AWARD IN OPMV 3346/2005 of MOTOR ACCIDENT CLAIMS TRIBUNAL ,THRISSUR DATED 26-03-2013** ## **APPELLANT/S:** **SANTHA W/O.LATE ARUMUGHAN, PALLIPARAMBIL HOUSE, (MALIEKKAL)PUZHINGARA P O, PUNNAYOOR, VIA, VADAKKEKKAD, THRISSUR DIST** **BY ADV. SRI.P.V.CHANDRA MOHAN** ## **RESPONDENT/S:** |**1**|**SATHYAN.C.S.**| |---|---| ||**AGED 62 YEARS**| ||**H NO.62,A/7,CHITTILAPPILLY HOUSE,P O**| ||**VADAKKEKKAD P O, THRISSUR DIST**| |**2**|**SANJAYAN**| ||**S/O.SUBRAMANIAN, ERINJJIPADI, VADAKKAD P O,**| ||**THRISSUR DIST**| |**3**|**THE ORIENTAL INSURANCE CO LTD**| ||**IST FLOOR, KALLOOKARAN SHOPPING**| ||**COMPLEX,ANGAMALI**| ||**BY ADVS.**| ||**SRI.A.R.GEORGE**| ||**SMT.TULASI PANICKER**| ||**SRI.RAJIT**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 14.09.2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **MACA.No. 1463 of 2013** -2- ## **J U D G M E N T** ## **Ravikumar, J** The injured petitioner comes up in appeal dissatisfied with and aggrieved by the award passed by the Motor Accidents Claims Tribunal, Thrissur in OP (MV) No. 3346 of 2005. 2. The case of the appellant before the Tribunal, going by the pleadings in the claim petition, was as follows:She sustained injuries in a motor vehicle accident occurred on 13-5-2005 at about 7.30 a.m. She was then, accompanying concreting materials in a three wheeler goods vehicle bearing Reg. No. KL8/AD 8130 through Vadakkekkadu-Kochannoor Public Road. It was being driven by the 2[nd] respondent. He abruptly applied ## **MACA.No. 1463 of 2013** -3- break during the course of journey and consequently, the vehicle turned turtle **.** Thereupon, she sustained serious injuries and was taken to Medical College Hospital, Thrissur . As part of the treatment, she had to remain as inpatient for a period of 25 days. It is in the said circumstances that the aforesaid claim petition was filed under Section 166 Motor Vehicles Act, 1988 (“the M.V. Act” for short) claiming a total compensation of Rs. 2,53,000/-. As per the impugned award, the Tribunal awarded an amount of Rs. 1,84,900/- as compensation with interest at the rate of 8% per annum from the date of petition till realisation. The petitioner seeks for enhancement of the quantum of compensation. 3. We have heard the learned counsel for the ## **MACA.No. 1463 of 2013** -4- appellant, the learned counsel appearing for the first respondent and also the learned counsel appearing for the 3[rd] respondent. Though notice was served on the 2[nd] respondent, he has not chosen to enter appearance and contest the matter. 4. The impugned judgment itself would reveal that after analysing the evidence on record, the Tribunal accepted the contention of the 3[rd] respondent, the insurer of the vehicle involved in the accident that it is not liable to indemnify the insured owner as the appellant viz., the injured was a gratuitous passenger in a goods vehicle and no premium was collected for covering the risk of gratuitous passenger. In short, the Tribunal held that the respondents 1 and 2 who are respectively the owner and ## **MACA.No. 1463 of 2013** -5- driver of the vehicle involved in the accident are jointly and severally liable and directed the first respondent to issue cheque for Rs.1,898/- towards court fee in favour of M.A.C.T., Thrissur and for the remaining amount, in the name of the appellant/petitioner. It is also to be noted that despite the said finding and direction neither the first respondent nor the 2[nd] respondent preferred any appeal against the said judgment. So also, they did not take up any cross-objection in this appeal. 5. The main contention of the appellant/injured is that the Tribunal went wrong in exonerating the 3[rd] respondent Insurance Company from indemnifying the insured owner of the vehicle. It is the contention that the Tribunal had not properly appreciated the evidence of the appellant as PW1 to the effect that at the time of the ## **MACA.No. 1463 of 2013** -6- accident she was accompanying construction materials being carried in the offending vehicle viz., the goods autorickshaw bearing Reg.No.KL 8/AD 8130. In short, it is the contention that the Tribunal erred in finding that the appellant was a gratuitous passenger in the said goods vehicle. Virtually, the learned counsel appearing for the first respondent, the owner of the goods vehicle endorsed the said contention of the appellant. However, the learned counsel appearing for the 3[rd] respondent countered the contention and submitted that to bring the case of the appellant within the purview of the provisions under Section 147(b)(i) of the M.V. Act, the appellant should have pleaded and proved that she was either the owner of the goods carried in the vehicle at the time of the accident or she was the authorised representative of the owner of the ## **MACA.No. 1463 of 2013** -7- said goods. The learned counsel for the 3[rd] respondent further contended that there is absolutely no such specific case for the appellant and naturally and in fact, no evidence was also adduced in that regard. In the circumstances, the Tribunal could not be found fault with in arriving at the conclusion that the appellant was a gratuitous passenger in the said goods vehicle and consequently, in exonerating the insurance company from the liability to indemnify the insured owner of the vehicle, it is contended. 6. To appreciate the contention, it is only apropos to refer to Section 147 (b) (i) of the M.V.Act,which reads thus:- - “147 (1) **Requirements of policies and** **limits of liability:-** (1) In order to comply with the ## **MACA.No. 1463 of 2013** 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 the extent specified in sub-section (2) - (i) against any liability which may be incurred by 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;” ## **MACA.No. 1463 of 2013** -9- Keeping in mind of the afore -extracted provision, we have carefully gone through the deposition of PW1, the certified copy of which was handed over by the learned counsel for the appellant, for our perusal. A scanning of the proof affidavit filed in lieu of chief-examination would also reveal absolute absence of any such case for the appellant. In other words, it is evident from the oral testimony of the appellant as PW1 that she had no case at all that she was the owner of the goods carried in the aforesaid goods vehicle or that she was the authorised representative of the owner of the goods. In fact, her precise case is that she was travelling along with 10 others including the driver, in the said vehicle and she was accompanying the construction materials being carried in the said vehicle. Therefore, the question is whether the ## **MACA.No. 1463 of 2013** appellant had taken necessary pleadings and also let in evidence to establish them, so as to bring her case within the purview of Section 147 (b)(i) of the M.V. Act. The appellant did not have a case before us that she had taken pleadings and also let in evidence before the Tribunal to establish that she was the owner of the goods then carried in the aforesaid vehicle or she was the authorised representative of the owner of the goods carried in the vehicle. 7. In this contextual situation certain other aspects also assume relevance. In connection with the accident in question police had registered a crime and the final report in that case was produced by the appellant himself as Ext.A2 and the same was produced on the side of the 3[rd] respondent as Ext.B3. It is stated therein against ## **MACA.No. 1463 of 2013** -11- respondent No.2, the driver of the offending vehicle thus:- “ ØÞÇÈBZ ÎÞdÄ¢ µÏçxI ÕÞÙÈJßW 10 çÉæøÏᢠµÏxß ¥ÎßÄçÕ·JßÜᢠdÖißAÞæÄÏᢠ¼àÕÈí ¥Éµ¿¢ ÕøᢠÕßÇ¢ ³¿ßºîá.” While being examined as PW1, the appellant would depose:- “ ¾ÞÈᢠèdÁÕùᢠÎáKßæÜ ØàxßÜÞÏßøáKá.å ÉáùµßWå¦æøÞæAçÏÞ ©IÞÏßøáKá.å¦øÞæÃKùßÏßÜï.” However, she would depose, later thus:- “ §ÕæøÜïÞÕøáÎßÜïÞÏßøáKá.å¾BZ øIáçÉæø ©IÞÏßøáKáUá.” 8. In **Roop Chand Jain v. Dr.(Mrs.) V. N.Naik** **[1991(1) TAC 558 (MP)],** the High Court of Madhya Pradesh held that the oral evidence of a witness in the absence of any foundation in the plea would be irrelevant and could be acted upon. Oral evidence adduced must be ## **MACA.No. 1463 of 2013** -12- based on proper foundation so that the Tribunal would be in a position to act upon it. In the absence of any foundation of the plea, it could not be acted upon by a Claims Tribunal. 9. Having given our anxious consideration to the evidence let in by the petitioner as PW1 in the light of the aforesaid provision, we have no hesitation to hold that there was absolute absence of any evidence so as to attract the provisions under Section 147(b)(1) of the M.V. Act so as to make the third respondent liable to indemnify the insured owner of the vehicle. The long and short of the said discussion that there is absolutely no error committed by the Tribunal in arriving at the conclusion that the appellant was a gratuitous passenger in a goods vehicle and consequently in exonerating the 3[rd] respondent from ## **MACA.No. 1463 of 2013** -13- the liability to indemnify the first respondent, the insured owner, of the goods vehicle. 10. Having answered the said question as above, the next question to be considered is whether the appellant is entitled to get the enhanced compensation. We have already found that the Tribunal mulcted the liability to compensate the petitioner on respondents 1 and 2. The learned counsel appearing for the appellant/injured contended that the Tribunal had granted only inadequate compensation under all heads. Despite the fact that the appellant had been an inpatient for a period of 25 days, no amount was granted towards extra-nourishment. So also, no amount was granted towards damage to clothing. It is the further submission that the Tribunal had also erred in fixing the monthly income as Rs. 3000/-. The contention ## **MACA.No. 1463 of 2013** -14- of the learned counsel for the appellant is that it is the erroneous fixation of the monthly income that deprived him due compensation for permanent disability. In that regard, it is further contented that the Tribunal had also committed an error in not accepting the extent of disability certified under Ext. A7 disability certificate. Going by Ext. A7, due to the injuries sustained in the accident, the appellant had incurred permanent disability to the extent of 21%. However, the Tribunal took only 18% as permanent disability for calculation purpose. In the context of the contentions it is to be noted that Ext.A7 disability certificate was issued by one Dr. Jyothish. K. and in other words, it is not a disability certificate issued by a duly constituted Medical Board. In such circumstances, in the light of the decision of Apex Court in **Raj Kumar v.** ## **MACA.No. 1463 of 2013** -15- **Ajay Kumar reported in [2011 (1) KLT 620 (SC)],** in order to prove that he had incurred permanent disability and also its extent the appellant ought to have got examined the doctor who issued the same. Obviously, the doctor issued Ext. A7 disability certificate was not examined before the Tribunal. Even then, the Tribunal granted compensation for disability after assessing the whole body disability of the appellant as 18%. Taking into account the circumstances, specifically mentioned in paragraph 8 of the impugned order, reckoning the whole body disability as 18% the Tribunal granted an amount of Rs.97,200/-. Taking into account the nature of evidence available for the purpose of granting compensation for disability we do not propose to interfere with the assessment of compensation under the head. According to ## **MACA.No. 1463 of 2013** -16- us, there is no reason to hold that compensation therefor, is inadequate in view of the nature of evidence adduced. Besides the same, the Tribunal granted an amount of Rs.25,000/- towards compensation for loss of amenities. Now, the question to be considered is whether a modification is required as regards the compensation for disability, on any ground as also compensation on any other head. The Tribunal fixed the monthly income of the appellant notionally as Rs.3,000/- and granted loss of earning for a period of four months. True that, we have declined to consider re-fixation of the monthly income for the purpose of calculating compensation for disability as we found the compensation granted there under is adequate. At the same time, we are of the view that, for the purpose of granting compensation for loss of earning, it ## **MACA.No. 1463 of 2013** -17- requires a refixation. In this context, it is to be noted that in **Lata Badhwa & Others v. State of Bihar & Others** , ( **AIR 2000(1) SC 3218)** , the Hon'ble Apex Court held that in the case of house wives belonging to the age group of 34-59, the services rendered by them could be equated in terms of money and it was thus equated in terms of money as Rs.3,000/-. In other words, in the case of house wives belonging to the said age group for calculation purpose, the monthly income was taken as Rs.3,000/-. At the time of the accident the appellant was aged 38 years. The accident in question had occurred on 13.5.2005. It resulted in crush injury on her left forefoot, traumatic amputation of 1[st] , 2[nd] and 3[rd] toes at the metatarso phalangeal joint and fracture on 1[st] metatarsal. The Tribunal found that she was walking with the help of prosthetic shoe wear. Evidently, she must ## **MACA.No. 1463 of 2013** -18- have deprived of enjoyment of life for the period fixed by the Tribunal. Her family was also deprived of her service during the said period. We are of the view that in such circumstances, to compensate the petitioner adequately the monthly income of the appellant for the aforesaid purpose, ought to have fixed slightly higher than Rs.3,000/-. We deem it fit and proper to fix the monthly income as Rs.4,000/- for the said purpose. At the same time taking into account the nature of injuries sustained by the appellant, as revealed from Ext.A3 wound certificate and Exts. A4 & A5 discharge certificate, referred to in the impugned judgment, we do not think it necessary to interfere with the fixation of the period therefore, as four months. In short, taking the monthly income as Rs.4,000/- for a period of four months, the appellant is ## **MACA.No. 1463 of 2013** -19- entitled to get an amount of Rs.16,000/- towards loss of earnings. The Tribunal had already granted an amount of Rs. 12,000/- under that head. Hence, the appellant is entitled to get an amount of Rs.4,000/- additionally. As noticed herein before towards extra nourishment and damage to clothing, no amount was granted by the Tribunal. The appellant had been an inpatient for a period of 24 days. Taking into account the price index and cost of living at the relevant time, we are of the view that it is only proper to grant reimbursement of expenses for extra nourishment at the rate of Rs.100/- per day. Consequently, an amount of Rs.2,500/- is granted under that head. The nature of the injuries would undoubtedly suggest that the dresses worn by the appellant at the time of the accident, must have been spoiled. Hence, we are inclined to grant an ## **MACA.No. 1463 of 2013** amount of Rs.500/- towards damage to clothing. On a perusal of the schedule of compensation given in the impugned judgment, we are of the considered view that compensation granted by the Tribunal under other heads are reasonable and no interference is called for. In short, an additional compensation of Rs.7,000/- is granted. The said additional compensation will carry interest at the rate of 8% per annum from the date of petition till realisation. Since we have not interfered with the finding of the Tribunal, exonerating the insurance company, from the liability to indemnify injured owner of the offending vehicle and also mulcting of the liability on respondents 1 and 2 jointly and severally, they are viz., respondents 1 and 2 are jointly and severally liable to pay the additional compensation along with the interest, as mentioned above. ## **MACA.No. 1463 of 2013** -21- It is submitted by the learned counsel appearing for the appellant that even the amount originally awarded under the impugned award was also not paid. In such circumstances, the respondents 1 and 2 shall deposit the entire amount covered by this judgment and also the impugned judgment (if not already deposited) within a period of four months from the date of receipt of a copy of this judgment. The appeal is disposed of as above. There will be no order as to costs. ## SD ## **C.T.RAVIKUMAR, JUDGE** **SD/ B.SUDHEENDRA KUMAR, JUDGE** ani/al/DL-