High Court of KeralaSingle Judge2018-12-10The appeal is allowed; cross-objection rejected...

SHAJI @ SAJU S/O KUNJIRAMAN v. T.K. Suresh; Joy E.P.; The New India Assurance Co. Ltd.

Case / Petition Number:MACA. No.223 of 2006

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Vinod Chandran
Judgment Date: 2018-12-10
Court Decision / Holding: The appeal is allowed. The cross-objection is rejected. The insurer remains liable to indemnify despite badge issues, per Mukund Dewangan. The court enhances compensation under Pranay Sethi heads, fixes monthly income per Ramachandrappa (Rs. 4,500 for 2001), and retains 6% disability. The total enhanced compensation is Rs. 1,07,320. The entire recovered amounts must be returned to the 2nd respondent with 7% interest within two months; if not paid, 12% interest from recovery until payment. The appellant must produce bank details for NEFT transfer within one month. The Tribunal’s order to credit via NEFT is to be followed; costs are not awarded in favour of either side; cross-objection is rejected; payment must be made within two months of certified copy of judgment.
Final Disposition: The appeal is allowed; cross-objection rejected; enhanced compensation directed along with indemnity and payment directions.

Parties to the Case

Appellants / Petitioners

SHAJI @ SAJU S/O KUNJIRAMAN

Respondents

T. K. Suresh
Joy E.P.
The New India Assurance Co. Ltd.

Legal Representation & Advocates

Counsels for Petitioners

• K. K. Mohamed Ravuf

Counsels for Respondents

• K. K. Mohamed Ravuf
• Joy Joseph (Manayathu)
• K. Paul KuriaKose

Case Synopsis & Summary

Sha ji @ Saju S/O Kunji Raman challenges the Motor Accidents Claims Tribunal award in OP MV 1958/2001 (perumbavoor, dated 15-06-2005) through MACA No.223/2006, seeking enhanced compensation and reconsideration of liability on the insured/owner. The High Court, hearing on 10 December 2018 (along with CO No.59/2016), addresses cross-objections by the driver (Joy E.P.) and issues of policy liability, badge of the driver, and admissibility of cross-objections in enhancement appeals. It reiterates that cross-objections cannot unsettle liability for policy violations and notes that the insurer cannot be absolved merely for absence of a badge, citing Mukund Dewangan v. Oriental Insurance Co. Ltd. The court relies on Supreme Court precedents (Ramachandrappa, Pranay Sethi, Manojkumar) to re-evaluate damages: fixing monthly income at Rs.4,500 (per Ramachandrappa, given the year 2001), and adopting a 6% whole-body disability (not 11%), while recognizing the need to compensate for loss of earning, medical and related heads as per Pranay Sethi. Enhanced heads are tabulated, yielding Rs.1,07,320 as total compensation after considering deductions, with the insurer directed to indemnify and to return amounts paid to the claimant with 7% interest (and 12% if not repaid). The appeal is allowed; cross-objection is rejected. The judgment specifies that payment be made within two months and via NEFT, with cancellation details to be produced. (Approx. 200 words)

Provisions of Law Cited

Motor Vehicles Act, 1988

Legal Doctrines & Maxims

Insurance company cannot be absolved of its liability to indemnify merely for absence of badge (Mukund Dewangan v. Oriental Insurance Co. Ltd.)
Cross-objections cannot disturb liability in an enhancement appeal (as per authorities cited)
Pranay Sethi principle for heads of compensation (National Insurance Company Ltd. v. Pranay Sethi and Others)
Ramachandrappa principle for determining monthly income in the year of accident (Ramachandrappa v. Royal Sundaram Alliance Insurance Company Limited)
Manojkumar v. Subramanian (dictum followed to dismiss cross-objection)

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant/claimant contends that the MACT award undervalued damages and liability allocations; relying on Supreme Court precedents (Ramachandrappa, Pranay Sethi) to fix realistic income (Rs.4,500/month for 2001) and to compute compensation under the Pranay Sethi heads. The appellant seeks deletion of liability on the owner/driver given absence of badge facts as clarified by Mukund Dewangan and insists the insurer’s liability persists despite badge issues. The disability claim is argued to reflect a higher whole-body impairment (11%), but the Court finds 6% appropriate in the absence of independent functional disability evidence. The appellant argues for enhanced compensation consistent with Pranay Sethi and for restoration of amounts already paid with interest.

Contentions of Respondents

The respondents contend cross-objections are not maintainable against liability for policy violation and that liability cannot be disturbed on an appeal for enhancement. They submit that the Tribunal’s finding regarding badge and policy terms should be preserved unless a clear change is warranted by precedent. The cross-objection by the 2nd respondent (driver) is argued to be untenable in light of settled law (Manojkumar), and the insurer’s liability to indemnify should not be easily defeated. They also emphasize the need to follow the Supreme Court’s approach to calculating damages and to ensure proper credit of amounts already paid.

Cited Precedents (5)

Case Name	Citation	Treatment	Explanation
Manojkumar v. Subramanian	2010 (2) KLT 893	Positive	The court follows the dictum in Manojkumar to dismiss the cross-objection.
Mukund Dewangan v. Oriental Insurance Co. Ltd.	(SC) 2017 (3) KLT 1000	Positive	Court relies on Supreme Court ruling that insurer cannot be absolved for absence of badge.
Ramachandrappa v. Royal Sundaram Alliance Insurance Co. Ltd.	(2011) 13 SCC 236	Positive	Used to justify Rs.4,500 monthly income for year 2001.
National Insurance Company Ltd. v. Pranay Sethi and Others	(2017) 5 KHC 350	Positive	Applied for computation of heads of compensation.
Ramachandrappa?	(2011) 13 SCC 236	Positive	See Ramachandrappa above; used to fix income.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **MONDAY, THE 10TH DAY OF DECEMBER 2018 / 19TH AGRAHAYANA, 1940** ## **MACA. No.223 of 2006** **AGAINST THE AWARD IN OP[MV] NO.1958/2001 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, PERUMBAVOOR DATED 15-06-2005** ## **APPELLANT/PETITIONER:** **SHAJI @ SAJU S/O.KUNJIRAMAN METHANATHU HOUSE, PUTHUMANA KARA, KOMBANADU P.O.** **(WRONGLY SHOWN AS SHAJU IN THE AWARD)** **BY ADV.SRI.K.K.MOHAMED RAVUF** ## **RESPONDENTS/RESPONDENTS:** |**1**|**T.K.SURESH**| |---|---| ||**THOMBRAKUDY HOUSE, KARATTUPALLIKKARA, PERUMBAVOOR.**| |**2**|**JOY E.P.,**| ||**S/O.PAULOSE, EDAKKARA HOUSE, PANDANCHERRY,**| ||**VENGOOR P.O.**| |**3**|**THE NEW INDIA ASSURANCE CO. LTD.,**| ||**ST.JOSEPH BUILDING, A.M.ROAD, PERUMBAVOOR.**| ||**BY ADVS.**| ||**JOY JOSEPH (MANAYATHU)**| ||**SRI.K.PAUL KURIAKOSE**| **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 10.12.2018, ALONG WITH CO NO.59/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA. No.223 of 2006 & 2 CO. No.59 of 2016 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **MONDAY, THE 10TH DAY OF DECEMBER 2018 / 19TH AGRAHAYANA, 1940** ## **CO. No.59 of 2016 IN MACA NO.223/2006** **AGAINST THE AWARD IN OP[MV] NO.1958/2001 OF THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, PERUMBAVOOR DATED 15-06-2005** **AGAINST THE JUDGMENT IN MACA NO.223/2006 of HIGHCOURT** ## **CROSS OBJECTOR/2ND RESPONDENT/2ND RESPONDENT:** **JOY E.P. S/O. PAULOSE, EDAKKARA HOUSE, PANDANCHERRY, VENGOOR P.O.** **BY ADV. SRI.K.PAUL KURIAKOSE** ## **RESPONDENTS/ALLEOOANT & RESPONDENTS 1 & 3/RESPONDENTS 1 & 3:** **1 SHAJI @ SAJU S/O. KUNJIRAMAN, METHANATTU HOUSE, PUTHUMANA KARA, KOMBANADU P.O., PIN-686 301.** **2 T.K.SURESH THOMBRAKUDY HOUSE, KARATTUPALLIKKARA, PERUMBAVOOR-686 661. 3 THE NEW INDIA ASSURANCE COMPANY LIMITED ST.JOSEPH'S BUILDING, A.M.ROAD, PERUMBAVOOR-686 661. BY ADV. SRI.K.K.MOHAMED RAVUF** **THIS CROSS OBJECTION HAVING BEEN FINALLY HEARD ON 10.12.2018, ALONG WITH MACA NO.223/2006, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA. No.223 of 2006 & 3 CO. No.59 of 2016 ## **JUDGMENT** **The appellant is the claimant and the crossobjector is the driver of the vehicle, who is the 2[nd] respondent. The 1[st] respondent/owner and the 2[nd] respondent driver were not served in the appeal. In the nature of the orders to be passed in the above appeal, this Court is of the opinion that there need be no notice on the 1[st] respondent, especially since the 2[nd] respondent submits that the entire amounts awarded by the Tribunal had been recovered from him, against which the crossobjection is filed.** ## **2. The cross-objection is by the driver of the** **vehicle, from whom recovery is said to have been effected. At the outset it has to be noticed that as against an appeal for enhancement, there cannot be a cross-objection filed to disturb the liability cast on the registered owner or the driver for reason of violation of policy. It has to be noticed that the award, which has been** MACA. No.223 of 2006 & 4 CO. No.59 of 2016 **challenged herein, does not grant such pay and recovery. It is the submission of the learned Counsel for the Insurance Company that subsequent to the award, an I.A. was filed by the Insurance Company alleging that the driver does not have a badge and in such circumstances, there was an amendment made to the award, thus granting the Insurance Company the power to recover the amounts paid by the injured from the registered owner or the driver. The cross-objection all the same is not maintainable and shall stand dismissed following the dictum in** _**Manojkumar v. Subramanian [2010 (2) KLT 893]**_ **.** **3. Even then the appeal of the claimant for enhancement can be allowed deleting the liability cast on the registered owner and driver since as of now there is a specific ruling of the Hon'ble Supreme Court in** _**Mukund Dewangan v. Oriental Insurance Company Limited [2017 (3) KLT 1000 (SC)],**_ **that the Insurance Company cannot be** **absolved of its liability to indemnify, merely for** MACA. No.223 of 2006 & 5 CO. No.59 of 2016 **the reason of absence of badge.** **4. The further ground is with respect to enhancement. The appellant was traveling in an auto-rickshaw when the accident occurred. The auto-rickshaw is said to have overturned, causing the accident which, according to the claimant, was by reason of the negligence of the auto-rickshaw driver. The Tribunal has also found negligence on the auto-rickshaw driver. The petitioner sustained comminuted fracture left middle, third of shaft of left femur. The Medical Certificate issued by the Mission Hospital, Kolencherry was produced to prove the same. The injury noted is closed transverse fracture, mid shaft of left femur. The appellant had twice gone to the hospital on 01.09.2001 and 05.09.2001. The appellant, who was aged 33 years, claimed to be a rubber tapper, getting a monthly income of Rs.4,500/-. The Tribunal adopted only 1,500/- as the monthly income. The accident occurred in the year 2001. In any event, the Hon'ble Supreme Court had found** MACA. No.223 of 2006 & 6 CO. No.59 of 2016 **Rs.4,500/- as the monthly income of a coolie in the year 2004 in** _**Ramachandrappa v. Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236].**_ **In such circumstances, the income as asserted by the appellant at Rs.3,500/- itself can be accepted, since the instant accident occurred in the year 2001.** **5. The appellant was also certified as being disabled @ 11% whole body disability. PW1 was the Doctor, who issued the Disability Certificate produced at Ext.A6. The Doctor deposed that the appellant is physically handicapped due to post traumatic ankylosis left knee following old fracture-shaft of femur left, with interlocking nail done. The Tribunal, on the ground that the 11% disability was not specifically stated to be of the whole body, adopted disability at 6%. This Court does not find any reason to deviate from such adoption, especially since there was no independent evidence as to the functional disability of the appellant. With respect to loss** MACA. No.223 of 2006 & 7 CO. No.59 of 2016 **of earning, the Tribunal has granted compensation only for three months, while it was specifically found that the appellant was advised rest for six months.** **6. The following enhancement shall be made on the various heads as has been declared by the Hon'ble Supreme Court in** _**National Insurance Company Ltd. v. Pranay Sethi and Others [2017 (5) KHC 350]**_ **as tabulated below:** |**Sl.** **No.**|**Head of Claim**|**Amount** **awarded by** **the Tribunal** `|**Total amount after** **enhancement in** **appeal**`| |---|---|---|---| |**1**|**Loss of earning**|**4500**|**21000**| |**2**|**Transportation** **expenses**|**1000**|**1000**| |**3**|**Medical expenses**|**24000**|**24000**| |**4**|**Bystander's expenses**|**2000**|**2000**| |**5**|**Extra nourishment**|**1000**|**1000**| |**6**|**Loss of amenities**|**6000**|**6000**| |**7**|**Pain and suffering**|**12000**|**12000**| |**8**|**Total disability**|**18360**|**40320** **[3500*12*16*6/100]**| ||**Total** **Rounded as**|**68860** **68900**|**107320**| MACA. No.223 of 2006 & 8 CO. No.59 of 2016 **7. The entire amounts recovered from the 2[nd] respondent shall be returned with 7% interest as directed by the Tribunal to the 2[nd] respondent within two months from the date of receipt of a certified copy of this judgment, failing which, the 2[nd] respondent would be entitled to recover the amounts with 12% interest from the date of recovery till payment.** **8. The amounts awarded as above, after deducting what has already been paid, shall be paid within two months from the date of receipt of a certified copy of this judgment with interest from the date of application and cost, if any, as directed by the Tribunal. The appellant shall produce a copy of a canceled cheque of the Bank account in his name with copy of AADHAAR before the Tribunal within one month, with copy to the Insurance Company. The Insurance Company shall credit the amount through NEFT of the said account, failing which, the applicant can approach** **the Tribunal.** MACA. No.223 of 2006 & 9 CO. No.59 of 2016 **The appeal is allowed without any order on costs in the appeal. The Cross-objection is rejected.** **Sd/-** **sp/11/12/18** **K. VINOD CHANDRAN JUDGE //True Copy//** **P.A. To Judge**