Six Motor Accidents Claims Appeals (MACA Nos. 1693/2008, 1694/2008, 2323/2009, 2324/2009, 2528/2009, 2532/2009) – United India Insurance Company Ltd. vs. various respondents, High Court of Kerala (Ernakulam)

1 M.A.C.A.NO.1693/2008 & CON.CASES ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 17TH DAY OF MARCH 2021 / 26TH PHALGUNA, 1942** **MACA.No.1693 OF 2008** **AGAINST THE AWARD IN OPMV 1379/1994 DATED 22-05-2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , MAVELIKKARA** ## **APPELLANT/7TH RESPONDENT:** **UNITED INDIA INSURANCE COMPANY LIMITED NOW REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL, OFFICE, SHARANYA, HOSPITAL ROAD, KOCHI-11.** **BY ADVS. SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** ## **RESPONDENTS/PETITIONERS AND REESPONDENTS 1 TO 6:** - **1 DR.K.A.HAMEED EX-MAJOR AMC, NAJEELA MANZIL, PANACHIMOODE LANE, PATTOM,, THIRUVANANTHAPURAM.** - **2 KAMILA BEEGAM W/O.DR.HAMEED DO. DO. 3 ASLAM HAMEED S/O.DR.HAMEED DO. DO. 4 NASEELA BEEGAM D/O.DR.HAMEED DO. D0. 5 FRANCIS SO.VARGHESE KIZHAKKANETHALA HOUSE, PUTHENCROS.P.O, PERUMBAVOOR.** - **6 ABBAS SO.SAIDU MOHAMMED MULLATHUVALAPPU VEEDU, VATTAYAL.P.O,, ALAPPUZHA.** - **7 THE DIVISIONAL MANAGER, NATIONAL INSURANCE COMPANY LTD, MARY MATHA BUILDING,, KOLENCHERRY.** M.A.C.A.Nos.1693/2008 & con. Cases. 2 - **8 JEENA RANI D/O.PROF.MYTHEENKUTTY ESCTACY, KARICODE, T.K.M.COLLEGE,P.O. KOLLAM.** - **9 T.J.RAZOOL S/O.JAMMAL AHAMMED SCIENTIST, INDIAN VETERINARY RESEARCH INSTITUTE,, BANGALORE.** - **10 NIYAZ SO.MYTHEENKUTTY ESCTACY KILIKOLLOOR, KOLLAM.** **R1, R7 BY ADV. SMT.DEEPA GEORGE R1 BY ADV. SRI.M.A.GEORGE R1, R8 BY ADV. SRI.V.JAYADHAR R1 BY ADV. SRI.R.S.KALKURA R1 BY ADV. SRI.G.PRADEEP KUMAR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17.03.2021, ALONG WITH MACA.1694/2008, MACA.2323/2009, MACA.2324/2009, MACA.2528/2009, MACA.2532/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.Nos.1693/2008 & con. Cases. 3 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 17TH DAY OF MARCH 2021 / 26TH PHALGUNA, 1942** ## **MACA.No.1694 OF 2008** **AGAINST THE AWARD IN OPMV 1380/1994 DATED 22-05-2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , MAVELIKKARA** ## **APPELLANT/7TH RESPONDENT:** **UNITED INDIA INSURANCE COMPANY LIMITED NOW REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL, OFFICE, SHARANYA, HOSPITAL ROAD, KOCHI-11.** **BY ADVS.** **SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW** ## **RESPONDENTS/PETITIONER AND RESPONDENTS 1 TO 5:** - **1 JEENA RANI, D/O. PROF.MYDEENKUTTY, ESCTACY, KARICODE,T.K.M.COLLEGE, P.O., KOLLAM.** - **2 FRANCIS SO.VARGHESE KIZHAKKANETHALA HOUSE, PUTHENCROS.P.O, PERUMBAVOOR.** - **3 ABBAS S/O.SAIDU MOHAMMED MULLATHUVALAPPU VEEDU, VATTAYAL.P.O,, ALAPPUZHA.** - **4 THE DIVISIONAL MANAGER, NATIONAL INSURANCE COMPANY LTD, MARY MATHA BUILDING,, KOLENCHERRY.** - **5 T.J.RAZOOL S/O.JAMMAL AHAMMED SCIENTIST, INDIAN VETERINARY RESEARCH INSTITUTE,, BANGALORE.** - **6 NIYAZ SO.MYTHEENKUTTY ESCTACY KILIKOLLOOR, KOLLAM.** M.A.C.A.Nos.1693/2008 & con. Cases. 4 **R1 BY ADV. SRI.V.JAYADHAR R1 BY ADV. SRI.M.A.GEORGE R1 BY ADV. SRI.G.PRADEEP KUMAR R4 BY ADV. SMT.DEEPA GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17.03.2021, ALONG WITH MACA.1693/2008, MACA.2323/2009, MACA.2324/2009, MACA.2528/2009, MACA.2532/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.Nos.1693/2008 & con. Cases. 5 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 17TH DAY OF MARCH 2021 / 26TH PHALGUNA, 1942** ## **MACA.No.2323 OF 2009** **AGAINST THE AWARD IN OPMV 1425/1994 DATED 22-05-2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , MAVELIKKARA** ## **APPELLANT/PETITIONER:** **JEENA RANI SALIM, D/O.MYTHEEN KUTTY, AGED 46 YEARS ECTASY, KILIKOLLOOR, T.K.M.M.COLLEGE P.O.,, KOLLAM, REPRESENTED BY (MYTHEEN KUTTY, POWER OF, ATTORNEY HOLDER, FATHER OF JEENA RANI SALIM).** ## **CAUSE TITLE AMENDED** **APPELLANT /PETITIONER** **JEENA RANI SALIM, D/O. MYTHEEN KUTTY, ECSTASY, KILIKOLLOOR, TKMM COLLEGE P.O, KOLLAM,** **CAUSE TITLE AMENDED BY VIRTUE OF THE DEED OF REVOCATION OF POWER OF ATTORNEY AND THE DEATH CERTIFICATE OF POWER OF ATTORNEY HOLDER WITHOUT MAKING ANY REFERENCE OF POWER OF ATTORNEY HOLDER IN THE CAUSE TITLE AS PER ORDER DATED 17/3/2021 IN I.A. 1/21 IN THE MACA.** **BY ADVS. SRI.V.JAYADHAR SRI.G.PRADEEP KUMAR** ## **RESPONDENT/S:** **1 FRANCIS S/O. VARGHESE, KIZHAKKANETHALA HOUSE, PUTHENKROZ P.O.,, PERUMPAVOOR, (TRICHUR).** **(THE NAME OF THE DISTRICT SHOWN IN THE ADDRESS OF 1ST RESPONDENT IS CORRECTED AS ERNAKULAM INSTEAD OF TRICHUR, AS PER ORDER DATED 22/07/2020 IN I.A. NO.1/2020 IN MACA NO.2323/2009)** M.A.C.A.Nos.1693/2008 & con. Cases. 6 - **2 ABBAS S/O. SAIDUMUHAMMED MULLATHUVELAPPU VEEDU, VATTAYAL P.O., ALAPPUZHA.** - **3 THE DIVISIONAL MANAGER NATIONAL INSURANCE CO. LTD., MARYMATHA BUILDING,, KOLENCHERRY.** - **4 DR.AHAMMED EX-MAJOR, AMC, NAJEELA MANZIL, PANACHIMOODU LANE,, PATTOM, THIRUVANANTHAPURAM.** - **5 KAMILA BEEGAM** - **NAJEELA MANZIL, PANACHIMOODU LANE,, PATTOM, THIRUVANANTHAPURAM.** - **6 ASLAM, D/O. HAMEED NAJEELA MANZIL, PANACHIMOODU LANE,, PATTOM, THIRUVANANTHAPURAM.** - **7 NAJEELA BEEGAM (MINOR)( NAJEELA MANZIL, PANACHIMOODU LANE,, PATTOM, THIRUVANANTHAPURAM.** - **8 RAZOOL SO. ISMAIL MUHAMMED ECSTASSY, T.K.M.M.COLLEGE P.O., KOLLAM.** - **9 NIYAS ECSTASSY, T.K.M.M.COLLEGE P.O., KOLLAM.** - **10 UNITED INDIA INSURANCE COMPANY LTD. BRANCH OFFICE, BANGALORE.** - **R1 BY ADV. SRI.M.A.GEORGE R10 BY ADV. DEEPA GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17.03.2021, ALONG WITH MACA.1693/2008, MACA.1694/2008, MACA.2324/2009, MACA.2528/2009, MACA.2532/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.Nos.1693/2008 & con. Cases. 7 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 17TH DAY OF MARCH 2021 / 26TH PHALGUNA, 1942** ## **MACA.No.2324 OF 2009** **AGAINST THE AWARD IN OPMV 1380/1994 DATED 22-05-2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , MAVELIKKARA** ## **APPELLANT/PETITIONER:** **JEENA RAVAI SALIM, D/O.MYTHEEN KUTTY, ECTASY, KILIKOLLOOR, T.K.M.M.COLLEGE P.O.,, KOLLAM, KERALA, PIN- 691005 REPRESENTED BY (MYTHEEN KUTTY, POWER OF, ATTORNEY HOLDER, FATHER OF JEENA RANI SALIM). (CORRECTED) (THE APPELLANT'S NAME JEENA RAVAI IS CORRECTED AS JEENA RANI VIDE ORDER DATED 13/3/2018 IN IA 917/18 IN MACA 2324/2009)** ## **CAUSE TITLE AMENDED** ## **APPELLANT/PETITIONER** **JEENA RANI SALIM, D/O. MYTHEEN KUTTY, ECSTASY, KILIKOLLOOR, TKMM COLLEGE P.O., KOLLAM, KERALA, PIN - 691 005.** **CAUSE TITLE AMENDED BY VIRTUE OF THE DEED OF REVOCATION OF POWER OF ATTORNEY AND THE DEATH CERTIFICATE OF POWER OF ATTORNEY HOLDER, WITHOUT MAKING ANY REFERENCE OF POWER OF ATTORNEY HOLDER IN THE CAUSE TITLE AS PER ORDER DATED 17/3/2021 IN I.A. 1/21 IN THE MACA.** **BY ADVS. SRI.V.JAYADHAR SRI.G.PRADEEP KUMAR** ## **RESPONDENTS/RESPONDENTS:** **1 FRANCIS, S/O. VARGHESE, KIZHAKKANETHALA HOUSE, PUTHENKROZ P.O.,, PERUMPAVOOR, ERNAKULAM. PIN- 682308 [ERNAKULAM DISTRICT IS ENTERED IN PLACE OF TRICHUR AS CORRECTION ORDERED BY THE HON'BLE HIGH COURT ON** M.A.C.A.Nos.1693/2008 & con. Cases. 8 **05.09.2019 IN I.A.NO.3 OF 2019 IN THE M.A.C.A.NO.2324/2009]** - **2 ABBAS SO.SAIDUMUHAMMED MULLATHUVELAPPU VEEDU, VATTAYAL P.O.,, ALAPPUZHA. PIN-690558** - **3 THE DIVISIONAL MANAGER NATIONAL INSURANCE CO.LTD., MARYMATHA BUILDING,, KOLENCHERRY.** - **4 RAZOOL S/O.ISMAIL MUHAMMED, ECSTASSY, T.K.M.M. COLLEGE P.O., KOLLAM. PIN-691005.** - **5 NIYAS ECSTASSY T.K.M.M.COLLAGE P.O. KOLLAM. PIN-691005.** - **6 UNITED INDIA INSURANCE COMPANY LIMITED BRANCH OFFICE, BANGALORE.** - **R3 BY ADV. M.A. GEORGE R6 BY ADV. DEEPA GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17.03.2021, ALONG WITH MACA.1693/2008, MACA.1694/2008, MACA.2323/2009, MACA.2528/2009, MACA.2532/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.Nos.1693/2008 & con. Cases. 9 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 17TH DAY OF MARCH 2021 / 26TH PHALGUNA, 1942** ## **MACA.No.2528 OF 2009** **AGAINST THE AWARD IN OPMV 1376/1994 DATED 22-05-2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , MAVELIKKARA** ## **APPELLANT/PETITIONER:** **NIYAS.M.M, S/O.MYTHEENKUTTY, ECSTASSY, TKMM COLLEGE P.O., KOLLAM.** **BY ADV. SHRI.K.NIRMALAN** ## **RESPONDENTS/RESPONDENTS:** **1 FRANCIS S/O.VARGHESE, KIZHAKKANETHALA HOUSE,, PUTHENKROZ P.O., PERUMPAVOOR, (TRICHUR).** **(THE NAME OF THE DISTRICT SHOWN IN THE ADDRESS OF 1ST RESPONDENT IS CORRECTED AS 'ERNAKULAM' INSTEAD OF TRICHUR, AS PER ORDER DATED 22/07/2020 IN I.A. NO.1/2020 IN MACA NO.2323/2009)** **2 ABBAS SO.SAID MUHAMMED MULLATHUVELAPPU VEEDU, VATTAYAL P.O.,, ALAPPUZHA. 3 THE DIVISIONAL MANAGER M/S.NATIONAL INSURANCE CO.LTD.,, MERRY MATHA BUILDING, KOLANCHERRY. 4 UNITED INDIA INSURANCE CO.LTD. BRANCH OFFICE, BANGALORE. R1 BY ADV. SRI.P.JACOB MATHEW R1 BY ADV. SRI.JOE KALLIATH R1 BY ADV. SRI.MATHEWS JACOB SR. R1 BY ADV. SRI.N.S.MOHAMMED USMAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17.03.2021, ALONG WITH MACA.1693/2008, MACA.1694/2008, MACA.2323/2009, MACA.2324/2009, MACA.2532/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.Nos.1693/2008 & con. Cases. 10 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 17TH DAY OF MARCH 2021 / 26TH PHALGUNA, 1942** ## **MACA.No.2532 OF 2009** **AGAINST THE AWARD IN OPMV 1378/1994 DATED 22-05-2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , MAVELIKKARA** ## **APPELLANT/PETITIONER:** **IMTIAZ.M.M., S/O.MYTHEENKUTTY, ECSTASSY, TKMM COLLEGE P.O., KOLLAM.** **BY ADVS. SRI.V.JAYADHAR SRI.G.PRADEEP KUMAR** ## **RESPONDENTS/RESPONDENTS:** **1 FRANCIS, S/O. VARGHESE, KIZHAKKANETHALA HOUSE, PUTHENKROZ P.O., PERUMPAVOOR, (TRICHUR).** **(NAME OF DISTRICT OF THE FIRST RESPONDENT IS CORRECTED AS ERNAKULAM AS PER ORDER DATED 12/02/2020 IN I.A NO.1/2020 IN THE MACA)** - **2 ABBAS, S/O.SAID MUHAMMED MULLATHUVELAPPUZ VEEDU, VATTAYAL P.O.,, ALAPPUZHA.** - **3 THE DIVISIONAL MANAGER M/S.NATIONAL INSURANCE CO.LTD., MERRY MATHA, BUILDING, KOLANCHERRY.** **4 RAZOOL ECSTASSY TKMM COLLEGE P.O. KOLLAM.** - **5 NIYAZ ECSTASSY TKMM COLLEGE P.O. KOLLAM.** - **6 UNITED INDIA INSURANCE CO. LTD. BRANCH OFFICE, BANGALORE.** M.A.C.A.Nos.1693/2008 & con. Cases. 11 **R1 BY ADV. SRI.P.JACOB MATHEW R1 BY ADV. SRI.JOE KALLIATH R1 BY ADV. SRI.MATHEWS JACOB SR.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17.03.2021, ALONG WITH MACA.1693/2008, MACA.1694/2008, MACA.2323/2009, MACA.2324/2009, MACA.2528/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A.Nos.1693/2008 & con. Cases. 12 ## **P.V.KUNHIKRISHNAN, J.** -------------------------------- M.A.C.A. Nos.1693/2008, 1694/2008, 2323/2009,2324/2009,2528/2009 & M.A.C.A.No.2532/2009 ------------------------------- Dated this the 17[th] day of March, 2021 ## **JUDGMENT** These six appeals are connected and therefore, I am disposing these six appeals by a common judgment. The Motor Accidents Claims Tribunal, Mavelikkara passed a common award in O.P(M.V) Nos. 981/1994, 1379/1994, 1380/1994, 1425/1994, 383/1995, and O.P.(MV) No. 385/1995. On the same date the Tribunal passed another common award in O.P(M.V) No. 1349/1994, 1376/1994, 1378/1994. All these claim petitions are connected, because, it is arising out of a same accident. Two vehicles were involved in the accident. One vehicle is a Maruthi Car and another is an Ambassodar Car. 2. The short facts are like this:- On 28.05.1994, at about 7.15 a.m., a Maruti Car bearing Registration No. CKI 3993 owned M.A.C.A.Nos.1693/2008 & con. Cases. 13 by the petitioner in O.P(M.V) No. 1349/1994 (Razool) driven by the petitioner in O.P(M,.V) No. 1376/1994 (Niyas) hit with an ambassador car bearing Registration No. KL-7C-2592 owned by one Francis and driven by one Abbas. The minor second petitioner in O.P.(MV) No. 1378/2009 (Imtiaz) was travelling in the Maruti car. O.P(M.V) No. 981/1994 and connected cases are filed by the driver and other passengers in the ambassador car. O.P(M.V) No. 1349/1994 and connected cases are filed by the driver, injured and the legal heirs of the deceased who travelled in the Maruti Car. 3. O.P(M.V). No. 981/1994 and connected cases were tried together. PW1 to PW5 were examined in the case. One witness was examined on the side of the defence as RW1. Exhibit A1 to A83 were marked in those cases. Exhibit B1 is the exhibit marked on the side of the respondents. In O.P.(M.V) No. 1349/1994 and connected cases, two witnesses were examined as PW1 and PW2. Exhibit A1 to A27 were marked. After going through the evidences and documents, the Tribunal found that the accident happened because of the rash and negligent driving of the Maruti Car driver (Niyas). Accordingly, the claim petition M.A.C.A.Nos.1693/2008 & con. Cases. 14 filed by the above said Niyas, which was O.P(M.V) No. 1376/1994 was dismissed. Similarly, two separate claim petitions were filed by the wife of the deceased in the Maruti Car and the parents and other siblings of the deceased claiming compensation as dependants of the deceased. Those claim petitions were numbered as O.P(M.V) Nos.1425/1994 and 1379/1994. The Tribunal dismissed O.P(M.V) No.1425/1994 and allowed O.P(M.V) No. 1379/1994 in which the appellant in O.P(M.V) No. 1425/1994 is one of the respondent. The Tribunal gave one share of the compensation awarded in O.P.(MV) No.1379/1994 to the claimant in O.P(M.V) No. 1425/1994 and therefore, O.P(M.V) No. 1425/1994 was dismissed as unnecessary. Challenging the award in O.P(M.V) No.1425/1994, M.A.C.A. No. 2323/2009 is filed. But it is to be noted here itself that, no appeal is filed against the award in O.P(M.V) No. 1379/1994. M.A.C.A No. 2324/2009 is filed by Jeena Rani Salim against the award in O.P(M.V) No. 1380/1994 which was filed by her claiming compensation for the personal injuries sustained to her. M.A.C.A No. 2532/2009 is filed by the minor claimant in O.P(M.V) No. 1378/1994, who was travelling in the Maruti Car. M.A.C.A. No. 2528/2009 is filed M.A.C.A.Nos.1693/2008 & con. Cases. 15 against the award in O.P(M.V) No. 1376/1994, which was filed by the driver of the Maruthi Car. M.A.C.A. Nos. 1693/2008 and 1694/2008 are filed by the United India Insurance Co. Ltd, challenging the liability fixed upon them by the Tribunal. Therefore, it is clear that all these appeals are connected and therefore, I am disposing all these appeals by a common judgment. I will consider each appeal separately. M.A.C.A No. 1693/2008 and M.A.CA No. 1694/2008 4. These two appeals are filed by the 7[th] and 6[th] respondents in O.P(M.V) No.1379/1994 and O.P(M.V) No. 1380/1994 on the file of the Motor Accidents Claims Tribunal, Mavelikkara. The appellants are the insurer of the Maruti Car bearing Registration No. CKI- 3993. The main contention of the appellant is that, as far as the insurance policy of the Maruti car is concerned, it is an Act Only Policy and the gratuitous passengers are not covered by the policy. There is no dispute on this aspect from the side of the respondents also. It is true that the counsel for the respondent submitted that, the policy is not produced before the Tribunal. The counsel for the appellant made available a copy of this policy. Admittedly, it is an Act only M.A.C.A.Nos.1693/2008 & con. Cases. 16 Policy. If that is the case, it is settled by several decisions of this Court and the Apex Court that, the gratuitous passengers are not covered by the same. In **United India Insurance Co. Ltd. v. Tilak Singh [2006 (2) KLT 884 (SC)** and **Manuara Khatun and Others v. Rajesh Kumar Singh and Others [2017 (4) SCC 796],** this point is considered in detail **.** In the light of the settled position on this point, I have to allow these two appeals and declare that the United Indian Insurance Company Ltd. is not liable to pay the compensation awarded in O.P(M.V) No. 1379/1994 and O.P(M.V) No. 1380/1994. The owner of the Maruti car namely Razool who is 5[th] respondent in M.A.C.A.No. 1694/2008 and the 9[th] respondent in M.A.C.A.No.1693/2008 is directed to pay the compensation amount awarded by the Tribunal in these two claim petitions. M.A.C.A. No. 2528/2009 5. This is an appeal filed against the award in O.P(M.V) No. 1376/1994 on the file of the Motor Accidents Claims Tribunal, Mavelikkara. The appellant was the driver of the Maruti car which is involved in the accident. He filed this claim petition for compensation alleging that the driver of the ambassador car was M.A.C.A.Nos.1693/2008 & con. Cases. 17 negligent. The Tribunal dismissed this claim petition. For deciding this appeal, a common issue is to be addressed by this Court. Whether the driver of the Maruti car is responsible for the accident or whether the driver of the ambassador car is responsible for the accident. If this Court found that the driver of the Maruti car is responsible, the rejection of the claim petition by the Tribunal is to be confirmed. 6. The Tribunal after considering the entire oral and documentary evidence came to a definite conclusion that the driver of the Maruti car is responsible for the accident and he was rash and negligent in driving. The counsel for the appellant vehemently argued that the police after investigation closed the case observing that it is an “accident”. The counsel submitted that there is adequate evidence adduced by the appellant to prove that there is negligence on the part of the driver of the ambassador car. The counsel submitted that it was a rainy day and the Maruti car skidded and went to the wrong side and then it was a head on collusion. The counsel submitted that there is adequate oral and documentary evidence to prove that there is negligence on the part of the driver of the ambassador car. The M.A.C.A.Nos.1693/2008 & con. Cases. 18 Tribunal has not considered this point properly. Therefore, this Court may reconsider the entire issue. 7. The 'occurrence' in this case happened on 28.5.1994 at 7.15 a.m. Admittedly, two motor vehicles involved in this case namely, a Maruti car bearing registration No.CKI-3993 and an ambassador car bearing registration No. KL-7C-2592. It is also an admitted case that the ambassador car was coming from north to south keeping the eastern side of the NH road. The Maruti car was coming from south to north and hit against the ambassador car from the eastern side of the road. Ext.A2 is the scene mahassar prepared in the crime case. It would show that the Maruti car was on its wrong side at the time of accident. According to the counsel for the appellant, it was a rainy day and suddenly, the vehicle skidded and hit on the ambassador car and there is negligence on the part of the driver of the ambassador car. There is no evidence to support the contention of the appellant. It is only the statement from the side of the counsel. There is no oral or documentary evidence to support such a case. The evidence available in this case only shows that the driver of the Maruti car is responsible for the accident. As I mentioned M.A.C.A.Nos.1693/2008 & con. Cases. 19 earlier, place of occurrence is mentioned in the scene mahasar as the eastern side of the road. Admittedly, the correct side as far as the Maruti car is concerned is on the western side. Therefore, prima facie there is negligence on the part of the driver of the Maruti car. Then the burden is on the driver of the Maruti car to explain how he reached on the eastern side of the road. The only explanation from the appellant is that it was a rainy day and the vehicle skidded. I cannot accept the same to conclude that the driver of the ambassador car is rash and negligent in such a situation. On a rainy day, when the appellant was driving a vehicle it is his duty to drive the vehicle with care and caution. If the vehicle skidded and went to the wrong side, that itself shows that there is negligence on the part of the driver of the Maruti car. Since the police submitted a report in which it is not specifically concluded that who is rash and negligent, the Tribunal has to decide this matter by considering the relevant materials. According to me, the Tribunal rightly found that the driver of the Maruti car is responsible for the accident. If that is the case, the appellant/driver of the Maruti car is the tortfeaser. He is not entitled for compensation. M.A.C.A.Nos.1693/2008 & con. Cases. 20 Therefore, the Tribunal rightly rejected that claim petition. Therefore, there is nothing to interfere with the order passed by the Tribunal. Therefore, M.A.C.A.No.2528/09 is to be dismissed. ## M.A.C.A.2532/2009 8. It is an appeal filed by the claimant in O.P.(MV) No.1378/1994 on the file of the Motor Accidents Claims Tribunal, Mavelikkara. This claim petition was tried along with O.P.(MV) Nos.1349/1994 and 1376/1994. The appellant was a passenger in the Maruti car. The Tribunal dismissed this claim petition for the following reasons. "14. OP(MV)No.1378/94 is filed by Maideen Kutty, the power of attorney holder of the owner and insurer of the Maruti car claimed compensation for the injuries sustained by the minor 2[nd] petitioner, who is his own son. When the father stepped into shoes of the owner and insured, the minor son is liable to be characterised as the owner himself. Since the respondents 1 to 3 are not liable to pay any compensation to the petitioners owning to the fact that the 2[nd] respondent driver of the Ambassador car was not responsible for the same, these petitioners cannot maintain a claim against any one of the respondents 1 to 3. Since his father himself is the power of attorney holder of the additional 4[th] respondent (owner) and his brother was the driver of the Maruti car (additional 5[th] respondent), the insurer of the Maruti car United India Insurance Company Ltd. (additional 6[th] respondent) cannot be made liable to pay any compensation for the injuries sustained by the minor petitioner. Moreover, the additional respondents 4 to 6 are impleaded in OP(MV) No.1378 as mere formal parties, without making any claim against them. Even M.A.C.A.Nos.1693/2008 & con. Cases. 21 after their impleadment in the original petition, the definite case of the petitioners herein is that the respondents 1 to 3 alone are liable to pay compensation. In the light of my finding in issue No.1 that the driver of the Ambassador car was not at all responsible for the accident, the petitioners cannot maintain a claim against the respondents 1 to 3. Hence I have no hesitation to conclude here that the petitioners in OP(MV) No.1378/94 are also not entitled to get any compensation for the injuries sustained by the minor 2[nd] petitioner in the accident. Issue No.2 is answered accordingly." 9. I am not in a position to accept this finding of the Tribunal. Admittedly, the appellant was a passenger in the Maruti car. It is also found that the driver of the Maruti car was rash and negligent which resulted in the accident. In such situation, the Tribunal cannot dismiss the claim petition filed by the appellant for the reasons mentioned above. The reasoning of the Tribunal for dismissing the claim petition is perverse. Therefore, the order dismissing the claim petition will not sustain. 10. It is already found that the driver of the Maruti car is responsible for the accident and he was rash and negligent. In such circumstances, the owner and driver of the Maruti car are liable to pay compensation to the appellant. The compensation is not quantified. Therefore, according to me this appeal is to be allowed and the matter is to be remanded back to the Tribunal for deciding compensation amount. A perusal of the award will show M.A.C.A.Nos.1693/2008 & con. Cases. 22 that the Tribunal has not assessed any compensation in this case. Therefore, for the limited purpose of fixing the compensation amount, the matter can be remanded. ## M.A.C.A.No. 2324/2009 11. This is an appeal filed by Jeena Rani Salim, a passenger in the Maruti car. She sustained very serious injury in the accident. She filed O.P.(MV) No.1380/1994. The Tribunal awarded a compensation of Rs.3,75,500/- with interest at the rate of 7.5% p.a. I already found in M.A.C.A.No.1694/2008 that the third respondent insurance company is not liable to pay compensation, but the owner of the Maruti car is liable to pay the compensation. But the appellant submitted that the quantum fixed by the Tribunal is too low. 12. When this matter cam up for consideration before this Court, this court directed the appellant to appear before a Medical board. The order dated 26.2.2018 is extracted here under. “As directed by this Court on 20.2.2018, the appellant is present. She submitted that she sustained a fracture of left femur, fracture of neck of right humerus, fracture of both bones of right leg, fracture M.A.C.A.Nos.1693/2008 & con. Cases. 23 of skull and lost vision of left eye and she is not able to identify the smell or taste. She appeared with the help of a bystander in crutches. The disability certificate issued shows only 15% physical disability and 30% visual disability. 2. In the circumstances, a fresh assessment of disability is necessary. The disability assessed by the lower court do not disclose the above difficulties. In the circumstances, the Superintendent, Medical College Hospital, Thiruvananthapuram is directed to constitute a separate Medical Board and assess the disabilities of the appellant. 3. The appellant is directed to appear before the Superintendent, Medical College Hospital, Thiruvananthapuram on 01.03.2018. On such appearance, the Superintendent shall fix the date of examination and examine the appellant with the help of Orthopeadic Surgeon, Ophthalmologist and Neurologist as experts and report the disability within two weeks after the above examination”. 13. Accordingly, the appellant appeared before the Medical Board. The Medical Board after examining the appellant submitted a disability certificate before this Court. The same is marked as Ext.C1. It will be part of the record. On perusal of Ext.C1, it will show that the medical board found that the disability is permanent and the degree of disability is 87%. There is nothing to disbelieve the disability certificate submitted by the Medical Board in the facts and circumstances of this case. Therefore, according to me Ext.C1 can be accepted for fixing the disability of the appellant. 14.. It is true that no evidence is adduced to substantiate M.A.C.A.Nos.1693/2008 & con. Cases. 24 the above disability certificate. But, this Court cannot ignore the realities. In _**Pappu Deo Yadav v. Naresh Kumar and others**_ [AIR 2020 SC 4424] after considering the earlier decisions, the Apex Court on the point of 'permanent disability' has held that the inquiry that has to be conducted by the Court is the resultant loss of income generating capacity of the claimant. The principle to be followed by the court in assessing motor vehicles compensation claims is to place the victim in the same position as he was before the accident. The Bench referred to the earlier decisions in _**Syed Sadiq and others v. Divisional Manager, United India Insurance Company**_ [2014 (2) SCC 735] and _**Raj Kumar v. Ajay kumar and anr.**_ [2011 (1) KLT 620 (SC)] and held that the court should not adopt a stereotypical or myopic approach, but instead, view the matter taking into account the realities supplied, both in the assessment of extent of disabilities and compensation under various heads. It was also held that the court should award compensation on future prospects. 15. Therefore, the disability of the appellant is fixed as 87%. If that is the case, the compensation for disability is to be M.A.C.A.Nos.1693/2008 & con. Cases. 25 reassessed. Moreover, the counsel submitted that the multiplier used is 17. In the light of the decision of the Apex Court in **Sarla** **Verma V.Delhi Transport Corporation (2009 (6) SCC 121)** the correct multiplier is 18, because the age of the appellant is 23 at the time of the accident. I think there is some force in this argument also. Moreover the counsel submitted that the Tribunal fixed the monthly income of the appellant as Rs.4,000/-. She is a graduate in engineering and she was working in M/s.L&T. The Tribunal fixed the monthly income of the appellant as Rs.4,000/-. The counsel submitted that towards future prospects 50% of the income is to be added in the light of the decision of the Apex Court in **National Insurance Company Vs. Paranay Sethi (2017 (4) KLT 662 (SC).** If that is the case, the monthly income is to be re-assessed as Rs.6,000/-. Then the compensation for disability is to be re-assessed in the following manner. Rs.6000x12x18x87/100=Rs.11,27,520/-. From the above amount the amount already granted by the Tribunal is to be deducted. (Rs.11,27,520-Rs.1,95,840= Rs.9,31,680/-. The appellant is entitled an enhanced compensation amount of M.A.C.A.Nos.1693/2008 & con. Cases. 26 Rs.9,31,680/-. The appellant is also entitled interest for the said amount at the rate of 7.5% from the date of application till realisation. 16. Even though the counsel for the appellant argued that the appellant is entitled more amount for compensation on other different heads, I think, the Tribunal considering the entire aspects fixed compensation in a just and reasonable manner. Therefore, I don't want to interfere with the amount already awarded in the other heads. Therefore, the appellant in this case is entitled for an enhanced amount of compensation of Rs.9,31,680/- with interest at the rate of 7.5% p.a from the date of application till realisation. The enhanced amount with the interest is to be paid by the owner of the Maruti car (Rasool) who is the fourth respondent in this appeal. M.A.C.A. 2323/09 17. This is an appeal filed by the petition in O.P.(MV) No.1425/94 claiming compensation for the death of her husband Salim who was a passenger in the Maruti car. It is to be noted that, O.P.(MV) No.1379/1994 was also filed by the father and M.A.C.A.Nos.1693/2008 & con. Cases. 27 other siblings of deceased Salim claiming compensation for the death of Salim in which the fourth respondent is the petitioner in O.P.(MV) No.1425/94. Considering these two claim petitions together, the Tribunal in the impugned award held that two separate claim petition is not necessary and accordingly O.P.(MV) No.1425/94 was dismissed and O.P.(MV)No.1379/94 was allowed in which the appellant herein was the fourth respondent. The compensation awarded in O.P.(MV) 1379/1994 was apportioned and one share is given to the appellant in this case. 18. Now the appellant is challenging the apportionment and denying separate compensation in this case. Admittedly, no appeal is filed against the award in O.P.(MV) No.1379/1994. Admittedly the appellant is given a share of the compensation in that award. Therefore, according to me, the Tribunal is justified in dismissing this claim petition in the light of the fact that the compensation is already granted to the appellant who is the wife of the deceased. According to me the Tribunal is perfectly justified in dismissing O.P.(MV) No.1425/94. According to me there is nothing to interfere with the award in O.P.(MV) No. 1425/94. Therefore, M.A.C.A. No.2323/1009 is dismissed. M.A.C.A.Nos.1693/2008 & con. Cases. 28 In the result, these appeals are disposed in the following manner: (i) M.A.C.A.1694/08 & M.A.C.A.1693/08 are allowed. The liability of the United India Insurance Company to pay compensation in O.P.(MV) Nos.1380/94 and 1379/94 is set aside and it is declared that the owner of the Maruti car (Rasool), who is respondent Nos.5 and 9 respectively in the above petitions are bound to pay compensation awarded in these cases. (ii) M.A.C.A.2528/09 is dismissed. (iii) M.A.C.A.2532/09 is allowed. The impugned award is set aside. MACT, Mavelikkara is directed to restore O.P.(MV No.1378/94 and further directed to dispose of the matter in the light of the observations in this judgment as expeditiously as possible, at any rate, within a period of six months from the date of receipt of a copy of this judgment. (iv) M.A.C.A.2324/94 is allowed in part. The impugned award is modified. The appellant is entitled enhanced compensation of Rs.9,31,680/- with interest at the rate of 7.5% from the date of application till realisation. Respondent No.4, who is the owner of M.A.C.A.Nos.1693/2008 & con. Cases. 29 the Maruti car (Rasool) is directed to pay the enhanced compensation with interest. - (v). M.A.C.A.No.2323/94 is dismissed. (vi) In the appeals filed by the insurance company, the statutory deposit and other deposits if any made as per the interim order passed by this Court will be disbursed to them. Sd/- **P.V.KUNHIKRISHNAN** **JUDGE** **Anj/Al/-+.**