Surendran v. Anitha Philip and Others (MACA No. 2616 of 2014; consolidated with MACA Nos. 1728 & 1729 of 2015)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH MONDAY, THE 7TH DAY OF NOVEMBER 2016/16TH KARTHIKA, 1938 MACA.No. 2616 of 2014 () ------------------------AGAINST THE AWARD IN O.P(M.V)NO.98/2011 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, PALA DATED 11-04-2014 ## APPELLANT/PETITIONER: --------------------------- SURENDRAN, S/O.KUNJU KUNJU, OLICKAL HOUSE, KOTHANALLOR KARA, KOTHANALLOR VILLAGE, KOTTAYAM DISTRICT. BY ADV. SRI.THOMAS ABRAHAM (NILACKAPPILLIL) ## RESPONDENTS/RESPONDENTS: ----------------------------------- - 1. PHILIP, S/O.CHANDY, PUTHENPURAYIL HOUSE, KANAKKARY P.O., KOTHANALLOR, KOTTAYAM DISTRICT. (DIED). (DELETED) - (1ST RESPONDENT IS DELETED FROM THE PARTY ARRAY , VIDE ORDER DTD. 5.10.2016 IN I.A.NO.3547/2016 IN MACA.NO. 2626/2014) 2. ANITHA PHILIP, W/O.PHILIP, PUTHENPURAYIL HOUSE, KANAKKARY P.O., KOTHANALLOR, KOTTAYAM DISTRICT, 686632. 3. THE MANAGER, HDFC ERGO GENERAL INSURANCE CO.LTD., 4TH FLOOR, K.T.OXFORD, BUSINESS CENTRE, SREEKALDATH, RAVIPURAM, COCHIN-682011. 4. JAMES, PUTHENPURAYIL OLIYIL HOUSE, CHAMAKKALA P.O., KOTHANALLOR VILLAGE, KOTTAYAM DISTRICT, 686 603. 5. JOSE, PUTHENPURAYIL OLIYIL HOUSE, CHAMAKKALA P.O., KOTHANALLOR VILLAGE, KOTTAYAM DISTRICT, 686603. R3 BY ADV. SRI.K.B.RAMANAND R2, R4 & R5 BY ADV. SRI.JACOB E SIMON THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 07-11-2016, ALONG WITH MACA.NOS.1728 & 1729 OF 2015 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T.RAVIKUMAR & K.P.JYOTHINDRANATH, JJ.** ------------------------------------ M.A.C.A.Nos.2616 of 2014 1728 & 1729 of 2015 ------------------------------------Dated 7th November, 2016 ## **JUDGMENT** ## **Ravikumar, J.** These appeals arise from a common award passed by the Motor Accidents Claims Tribunal, Pala in O.P.(M.V)Nos.1110 of 2010 and 98 of 2011 germinated from the same occurrence. The accident that led to the filing of the above mentioned claim petitions occurred on 3.7.3010 at Kothanalloor on Chamakkala - Kothanalloor public road. The appellant in M.A.C.A.No.2616 of 2014 was riding a motor cycle bearing Reg.No.KL-36/5185 through the said road. The claimant in O.P.(M.V)No.1110 of 2010 was the pillion rider on it. When they reached the place of occurrence, the offending vehicle which is a car bearing Reg.No.KL-36/A-1703 driven by the first respondent dashed against the motor cycle. Consequently, the riders of the motor cycle fell down and sustained injuries. It is seeking compensation for the injuries sustained in the said accident that the above mentioned claim petitions were filed. The appellants in M.A.C.A.Nos.1728 & 1729 of 2015 arising respectively from O.P.(M.V)Nos.1110 of 2010 and 98 of 2011 were respondents 2, 4 and 5 in the respective claim petitions. M.A.C.A.Nos.2616/2014, 1728 & 1729/2015 2 M.A.C.A.No.2616 of 2014 has been filed by the claimant in O.P.(M.V) No.98 of 2011 on feeling aggrieved by and dissatisfied with the quantum of compensation granted by the Tribunal in the said claim petition. Considering the circumstances expatiated above we have heard the appeals jointly and are disposed of by this common judgment. 2. We have heard the learned counsel for the appellants in M.A.C.A.Nos.1728 & 1729 of 2015, the learned counsel appearing for H.D.F.C. Ergo General Insurance Co. Ltd. which is a common respondent in all the appeals. In fact, the said respondent is the insurer of the offending vehicle. The former appeal obviously filed in the year 2014 had come up a number of times before this Court. For a considerably long period it remained defective and even after curing the defect when this matter is taken up for consideration today, none appeared for the appellant. Still, taking note of the fact that all these appeals are intrinsically interconnected we are proceeding to consider all the appeals. 3. The impugned common award would reveal that the evidence on record consisted only of the oral testimony of the claimant M.A.C.A.Nos.2616/2014, 1728 & 1729/2015 3 in O.P.(MV.)No.98 of 2011 and the documentary evidence consisting of Exts.A1 to A17 produced on the side of the claimants and Ext.X1 which is a disability certificate dated 4.7.2012 produced on the side of the claimant in O.P.(M.V)No.98 of 2011 (the appellant in M.A.C.A.No.2616 of 2014). The Tribunal had evaluated the evidence on record and considered the rival contentions and ultimately found that the accident occurred solely due to the negligence on the part of the driver of the Car and that in respect of the offending vehicle there was a valid insurance policy at the time of the accident. But, at the same time, it was found that its driver viz., Philip was not holding a valid driving licence at the time of the accident. Since he died during the pendency of the claim petition his brothers viz., appellants 2 and 3 in M.A.C.A.Nos.1728 & 1729 of 2015 were impleaded as additional respondents 4 and 5 before the Tribunal. His wife being the owner of the said alleged offending vehicle was already in the array of parties in her capacity as the owner of the offending vehicle. The Tribunal issued directions to respondents 2, 4 and 5 therein viz., the appellants in M.A.C.A.Nos.1728 & 1729 of 2015 to produce the driving licence of the first respondent. Despite such specific direction the driving licence of the first respondent was not produced by the said appellants before the Tribunal. Since the very case of the insurance company was that the M.A.C.A.Nos.2616/2014, 1728 & 1729/2015 4 first respondent was not possessing a valid driving licence at the time of the accident and taking note of the fact that respondents 2, 4 and 5 had failed to produce the driving licence the Tribunal upheld the contention of the insurer of the offending vehicle that its driver was not having a valid driving licence at the time of the accident. Consequently, it was held that the said Insurance Company is not liable to indemnify the 2[nd] respondent that is, the first appellant in M.A.C.A.Nos.1728 & 1729 of 2015. However, taking note of the fact that the insurer admitted the existence of a valid policy at the time of the accident the Tribunal allowed pay and recovery rather, directed the insurer to pay the amount awarded and then to recover the amount paid to satisfy the award from respondent No.2 and additional respondents 4 and 5 and from the assets which they inherited from the first respondent. 4. The appellants in M.A.C.A.Nos.1728 & 1729 of 2015 assail the impugned common award contending that the Tribunal went wrong in holding that the first respondent therein was not holding a valid driving licence at the time of the accident. The fact that the Tribunal issued a specific direction to respondents 2, 4 and 5 to produce the driving licence of the first respondent who was driving the Car involved in the accident is not in dispute. In fact, the appellants in M.A.C.A.Nos.2616/2014, 1728 & 1729/2015 5 M.A.C.A.Nos.1728 & 1729 of 2015 are not disputing the same and also the fact that despite direction they could not produce the driving licence. In such circumstances, taking note of the specific averments of the insurer of the alleged offending vehicle that the first respondent who was the driver of the alleged offending vehicle was not possessing a valid driving licence at the time of the accident, the Tribunal upheld the said contention. The 2[nd] respondent viz., the first appellant in M.A.C.A.Nos.1728 & 1729 of 2015 had failed to produce the said documents before the Tribunal or to give a valid explanation for their lapse in not producing the same. It was not produced before this Court, as well. We do not find any reason to hold that the Tribunal went wrong in holding that the third respondent is not liable to indemnify the 2[nd] respondent, the owner of the offending vehicle as she had failed not only to produce the driving licence of the first respondent authorizing him to drive the vehicle involved in the accident but also to satisfy that she had discharged the statutory liability in terms of Section 5 of the Motor Vehicles Act. Under the said provision, the owner of a motor vehicle got a statutory liability to ensure that he is not causing or permitting any person who does not satisfy the provisions of section 3 or section to drive the vehicle. In such circumstances, we are of the considered view that the ultimate finding of the Tribunal that M.A.C.A.Nos.2616/2014, 1728 & 1729/2015 6 respondents 2, 4 and 5 had failed to establish that the first respondent was having a valid driving licence at the time of the accident and consequently, granting liberty to the insurer of the said offending vehicle to recover the amount after satisfying the impugned award in the claim petition, cannot be said to be an error warranting appellate interference. The decision of the Hon'ble Apex Court in **Ishwar Chandra** v. **Oriental Insurance Co. Ltd. (AIR 2007 SC 1445)** rendered relying on the decision of the Hon'ble Apex Court in **National Insurance Co. Ltd.** v. **Swaran Singh (2004 (1) KLT 781 (SC))** fortifies our conclusion and findings and confirmance of the order of `pay and recovery'. 5. The learned counsel appearing for the appellants in M.A.C.A.Nos.1728 and 1729, of 2015 raised a further contention that the compensation granted by the Tribunal in O.P.(M.V)No.98 of 2011 is exorbitant and it invites interference. In that context, it is also to be noted that the claimant therein preferred O.P.(M.V)No.2616 of 2014 seeking enhancement of the compensation. Therefore, the question whether the Tribunal granted just compensation commensurating with the injuries sustained by the claimant in O.P.(M.V)No.98 of 2011 also, has to be considered subject to the outcome of the challenge on the M.A.C.A.Nos.2616/2014, 1728 & 1729/2015 7 ground of exorbitancy raised by the appellants in M.A.C.A.Nos.1728 and 1729, of 2015. Ext.A8 is the wound certificate in respect of the appellant in the former appeal/claimant in O.P.(M.V)No.98 of 2011. Ext.A9 is the discharge card. In Ext.A8 the injuries are noted as hereunder:- “Lacerated wound 8 x 5 x 1 cm over the lateral aspect of right ankle exposing bone, lacerated wound over the left shin 1 x 1 x 0.5 cm, comminuted fracture both bones of the distal third.” Ext.A9 discharge card would reveal that the appellant had sustained Type III B open fracture on both bones of the right leg. He had been an inpatient from 3.7.210 to 13.7.2010 and thereafter, from 22.7.2010 to 28.7.2010. But, Ext.X1 would reveal that the injuries sustained by the said appellant resulted in 11% permanent disability. However, the Tribunal held that it was not proved by examining the person who issued the same. The contention of the said appellant was that he was a lottery ticket seller. The Tribunal assessed the permanent disability as 6% though Ext.X1 was not legally proved before the Tribunal. Evident that Ext.X1 was not proved before the Tribunal and despite the same the Tribunal took 6% as the extent of permanent disability. Taking note of the nature of the injuries revealed from Exts.A8 and A9 M.A.C.A.Nos.2616/2014, 1728 & 1729/2015 8 and also of the fact that the Tribunal has had the opportunity to see the claimant in O.P.(M.V)No.98 of 2011 we are of the view that the assessment of permanent disability by the Tribunal as 6% for calculating compensation for permanent disability of the claimant in O.P.(M.V)No.98 of 2011 requires no interference. As noticed earlier, the said claimant claimed that he was a lottery ticket seller and he was earning 10,000/- per month. Except the oral evidence of PW1 there₹ is nothing on record which would reveal that the appellant in M.A.C.A.No.2616 of 2014 was a lottery ticket seller. Even if it is taken that he was then engaged in lottery ticket selling there is nothing on record which would reveal what exactly what was his income at the time of the accident. In such circumstances, we do not find any reason to hold that the Tribunal went wrong in fixing the monthly income notionally. Taking note of the fact that he was aged 45 years and the accident occurred in the year 2010 coupled with the fact that he has failed to adduce any evidence to establish his income, we are also of the view that the fixation of the monthly income by the Tribunal for calculation purpose as 6,000/- requires no interference. Taking note₹ of the nature of the injuries and their aftermath and going through the impugned judgment, we are of the view that the compensation of ₹ 1,49,180/- awarded by the Tribunal as against a claim for M.A.C.A.Nos.2616/2014, 1728 & 1729/2015 9 ₹ 2,50,000/- is a just compensation commensurates with the injuries sustained by him. In the said circumstances, no interference with respect to the quantum of compensation is required either at the instance of the 2[nd] respondent/the first appellant in M.A.C.A.Nos.1728 & 1729 of 2015 as also at the instance of the appellant in M.A.C.A.No.2616 of 2014 that is, the claimant in O.P.(M.V)No.98 of 2011. The long and short of the discussion as above is that there is no merit in these appeals and consequently, all the appeals are dismissed. In the said circumstances, the parties shall bear their respective costs, in all the appeals. Sd/- **C.T.RAVIKUMAR Judge** Sd/- **K.P.JYOTHINDRANATH Judge** TKS // true copy // P.S. To Judge