Santosh Kumar v. Raimond Rajan and Others and Oriental Insurance Co. Ltd.

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH FRIDAY, THE 30[TH] DAY OF SEPTEMBER 2022 / 8TH ASWINA, 1944 ``` ``` MACA NO. 2873 OF 2009 ``` ``` AGAINST THE ORDER/JUDGMENT IN OP(MV) NO.413/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM ``` ## `- APPELLANT/PETITIONERS :` ``` SANTHOSH KUMAR S/O. YESODHARAN, VALIYATHI VEEDU,, ARINALLOOR MURI, THEVALAKKARA VILLAGE, KARUNAGAPPALLY, KOLLAM. ``` ``` BY ADV SRI.C.RAJENDRAN ``` ## `- RESPONDENT/RESPONDENTS :` ``` 1RAIMOND RAJAN ARINALLOOR.P.O. THEVALAKKARA,, KARUNAGAPPALLY, KOLLAM. 2AJIKUMAR SO. PARAMU KAVINTE VADAKKATHIL, MEKKADU MURI, PANMANA VILLAGE,, KARUNAGAPPALLY, KOLLAM. 3THE DIVISIONAL MANAGER ORIENTAL INSURANCE CO. LTD., KOLLAM. BY ADVS. SRI.JACOB E SIMON SMT.P.A.PRIYA SRI.GEORGE CHERIAN (SR.) SRI.ALEXY AUGUSTINE SMT.DHANYA BABU ``` ## `SMT.K.C.SANTHI, SC` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 30.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA No.2873 of 2009 ``` ``` 2 ``` ## **JUDGMENT** ## **Dated this the 30[th ] day of September, 2022** This appeal is filed challenging an award passed by Motor Accidents Claims Tribunal, Kollam (for short ‘the Tribunal’) on 31.01.2009 in O.P.(MV) No.413 of 2004. The appellant is the petitioner before the Tribunal. 2. On 09.02.2003 at about 6.15 pm, while the petitioner was travelling in a Petty autorickshaw bearing Registration No.KL-2/Q 810 from north to south after unloading copra loaded in it at Sasthamcotta, it capsized to the left side of Sasthamcotta-Padappanal public road near Gurumandiram on application of brake all on a sudden by it’s driver and thereby sustained injuries. 3. The accident was allegedly occurred due to the rash and negligent driving of the Petty autorickshaw by it’s driver. The driver, registered owner and insurer of the vehicle were arrayed in the original petition seeking compensation as respondents 1 to 3 and they ``` MACA No.2873 of 2009 ``` ``` 3 ``` were alleged as jointly and severally liable to compensate him. A total sum of Rs.2,50,000/- was claimed in the original petition as the compensation payable. 4. Respondents 1 and 2 did not turn up to contest the original petition and therefore, declared ex parte. The third respondent had filed written statement admitting the policy for the Petty autorikshaw as on date of accident. The contentions raised were that the petitioner was travelling in the vehicle as a gratuitous passenger, that the second respondent was driving the Petty autorickshaw with due care and caution, that the second respondent was not holding a valid driving licence at the time of the alleged accident, that the first respondent by permitting the petitioner to travel in the goods vehicle has violated the terms of the policy issued in his favour and that therefore, liability cannot be fastened on the insurer to indemnify the insured. 5. Before the Tribunal, the petitioner examined himself as PW1 and marked Exts.A1 to A8 in evidence. On the side of respondent No.3, Ext.B1 was marked. ``` MACA No.2873 of 2009 ``` ``` 4 ``` 6. The Tribunal on appreciation of the evidence found the driver of the Petty autorickshaw, rash and negligent in driving and responsible for the accident and arrived at a sum of Rs.82,677/rounded of to Rs.82,700/- as the total compensation payable. The Tribunal exonerated the third respondent, insurer from liability to indemnify the insured for the reason of violation of conditions of policy by permitting the petitioner to travel in a goods vehicle as a gratuitous passenger. 7. According to the learned counsel, the Tribunal had taken only Rs.2,000/- as the monthly income of the petitioner for the purpose of computation of compensation for loss of earnings as well as permanent disability. According to the learned counsel Rs.2,000/taken is too low since the accident in the case was occurred in the year 2003. The learned counsel canvassed for taking a higher sum in consideration of _**Ramachandrappa v. Royal Sundaram Alliance Insurance Co.Ltd**_ [(2011) 13 SCC 236]. The learned counsel has also contended that the compensation awarded by the Tribunal under various other heads is also too low. According to her, the Tribunal ``` MACA No.2873 of 2009 ``` ``` 5 ``` overlooked the factum that the petitioner has sustained serious injuries in the motor accident and thus awarded only meager compensation for pain and suffering and loss of amenities. Accordingly modification of the compensation is canvassed under various heads. 8. The learned counsel for the first respondent has contended that the first respondent being unemployed, modifications shall not be made in the quantum of compensation awarded under various heads. According to him, his inability to pay it in view of unemployment must also be considered. According to him, interference is uncalled for as the compensation awarded by the Tribunal under various heads are just and reasonable. She also pointed out that the multiplier was wrongly taken by the Tribunal as ‘18’ whereas the correct multiplier ought to have been taken is ‘17’. The learned counsel has also contended that the monthly income is not proved by the petitioner and therefore, the Tribunal is justified in fixing Rs.2,000/- notionally for assessment of compensation. Accordingly the first respondent urged this Court not to interfere with the impugned award. ``` MACA No.2873 of 2009 ``` ``` 6 ``` 9. The learned counsel for the third respondent has contended that the policy conditions are violated by the insured by permitting the petitioner to travel in the vehicle, as a gratuitous passenger. According to the learned counsel, the Tribunal has rightly exonerated the third respondent from liability to indemnify it and fixed the liability on the first respondent. The learned counsel canvassed for maintaining the findings of the Tribunal. 10. It is pertinent to see from Ext.A6 wound certificate issued from District Hospital, Kollam that the petitioner was referred to that hospital from Loka Rakshaka Hospital. The petitioner had sustained spinal injury in the motor accident. On the day itself, he was referred for better management to Medical College Hospital, Thiruvananthapuram. Ext.A7 is the discharge card issued from Medical College Hospital and it discloses his admission there on 09.12.2003 and discharge on 21.12.2003. He had also undergone a surgery there on 10.12.2003. The injuries reported were blunt injury on abdomen, fracture of pelvis, fracture of clavicle and intra peritoneal rupture. The petitioner was aged 30 years at the relevant time. The ``` MACA No.2873 of 2009 ``` ``` 7 ``` Tribunal has taken the multiplier as ‘18’. For a man aged 30 years, ‘17’ is the appropriate multiplier. Therefore, the Tribunal has gone wrong in taking ‘18’ as the multiplier and this Court is inclined to correct it as ‘17’. The monthly income claimed by the petitioner was Rs.3,500/-. He was alleged as a mason and also doing copra business. True that the Apex Court has taken Rs.4,500/- as the monthly income of a coolie worker in the year 2004 for assessment of compensation. The accident in the case on hand being occurred in the year 2003, this Court finds it reasonable to fix Rs.3,500/- as the monthly income. 11. The petitioner had sustained serious injuries and that is established from the various medical documents marked in evidence. The petitioner had also undergone an operation. Considering the nature of the injuries, this Court is inclined to take 6 months as the period for which he lost earnings due to the accident. When calculated with the above modified factors, the sum payable would come to Rs.21,000/-. Since the petitioner has been awarded with Rs.6,000/- by the Tribunal, Rs.15,000/- will be payable in addition. Under the head bystander expenses, transportation expenses and extra nourishment, ``` MACA No.2873 of 2009 ``` ``` 8 ``` the Tribunal has awarded Rs.1,200/-, Rs.2,000/- and Rs.1,000/respectively. This Court is inclined to modify the sum payable respectively to Rs.3,200/-, Rs.4,000/- and Rs.2,000/-. Thus, the petitioner would get Rs.2,000/-, Rs.2,000/- and Rs.1,000/- respectively under those heads in addition. Under the head damages to clothing and articles this Court is inclined to grant Rs.500/- more. Under the head pain and suffering, this Court is inclined to grant Rs.15,000/- and under the head loss of amenities in life, a sum of Rs.10,000/-, more. The compensation for disability when re-assessed on the basis of the modified monthly income of Rs.3,500/- and multiplier, ‘17’, the compensation payable would be Rs.28,200/- in addition. Thus the petitioner will get a total sum of Rs.73,700/- (Rupees Seventy three thousand seven hundred only) additionally, which would carry interest at the rate of 7.5% per annum from the date of the petition till the date of realisation. The injured was established as travelling in the goods vehicle after unloading copra. Therefore, the insurer is liable to indemnify the insured. Accordingly, liability to indemnify the insured is fastened on the 3[rd] respondent. 3[rd] respondent shall deposit the ``` MACA No.2873 of 2009 ``` ``` 9 ``` amount now stands granted additionally within two months from the date of receipt of a copy of the judgment by it. 12. It is noticed that while passing orders in C.M.Appln.No.1 of 2009 in the above appeal, this Court has exonerated the first and second respondents from paying interest for the delay of 79 days occurred in filing the appeal. Since liability is now fastened on the third respondent, it is exempted from paying interest for 79 days, for which filing of the appeal on hand was delayed. MACA stands allowed accordingly. Sd/- **MARY JOSEPH SMA JUDGE**