T. Chandrababu v. Bineesh and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **WEDNESDAY,THE 17TH DAY OF JUNE 2020/27TH JYAISHTA, 1942 MACA.No.3110 OF 2008(C)** **AGAINST THE AWARD DATED 03-06-2008 IN OP(MV) 1781/2001** **OF MOTOR ACCIDENT CLAIMS TRIBUNAL,ERNAKULAM** **APPELLANT/PETITIONER IN OP(MV) NO.1781/2001 OF MACT, ERNAKULAM:** **T.CHANDRABABU,AGED 43 YEARS, S/O.S.THANKAPPAN,KOCHUVELITHARA, VALAMANGALAM NORTH,THURAVOOR P.O., CHERTHALA, ALAPPUZHA DISTRICT.** **BY ADV. SRI.T.K.RADHAKRISHNAN** **RESPONDENTS/RESPONDENTS IN OP(MV) NO.1781/01 OF MACT, ERNAKULAM:** - **1 BINEESH,VADAKKEPULLAMPILLIYIL, SMC.7/198,CHERTHALA,ALAPPUZHA DISTRICT.** - **2 VINOD, AGED 36 YEARS S/O.DINESHAN, CHANGARAMVELI HOUSE,SOUTH OF RAILWAY STATION, CHERTHALA,KUTTIKKATTU KARA, CHERTHALA NORTH VILLAGE,CHERTHALA TALUK, ALAPPUZHA DISTRICT (DELETED)*** - **3 THE NEW INDIA ASSURANCE CO.LTD., ALUVA.** - **4 C.MANI, S/O.CHINNA GOUNDER, THULUKKAMKADY,THENGAYUR POST, EDAPPADY,SALEM DISTRICT,TAMIL NADU.** - **5 V.KRISHNA MOORTHY, S/O.R.VEERABHADRAN, H.NO.464, NEAR VETERINARY HOSPITAL, SENKOTTAVEL NAGAR, KONGANAPURAM VILLAGE,** MACA No.3110/2008 : 2 : **SANGAGIRI, EDAPPADI TALUK,TAMIL NADU. (DIED. LEGAL HEIRS NOT IMPLEADED)** **R2 IS DELETED FROM THE PARTY ARRAY VIDE ORDER DATED04/03/2020 IN IA 4737/2017 IN MACA 3110/08. ALSO IT IS RECORDED THAT THERE IS NO NECESSITY TO IMPLEAD THE LEGAL HEIRS OF THE DECEASED R5 VIDE ORDER DATED 04.03.2020 IN I.A. 4737/17 IN MACA 3110/08.** **R1 BY ADV. SRI.J.OM PRAKASH R3 BY ADV. SRI.P.JACOB MATHEW R3 BY ADV. SRI.MATHEWS JACOB (SR.)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.3110/2008 : 3 : ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ _**Dated this the 17[th] day of June, 2020**_ The claimant in OP(MV) No.1781/2001 of the Motor Accidents Claims Tribunal, Ernakulam, is in appeal, aggrieved by Award dated 03.06.2008. 2. Before the Tribunal, the appellant stated that on 25.02.2000, while he was travelling in a Mini lorry, along the Kundannur - Vyttila Bye-pass, the Mini lorry hit against another lorry and the appellant sustained injuries. The appellant was taken to Medical Trust Hospital, Ernakulam and from there to Medical College Hospital, Kottayam. The appellant was under treatment from 25.02.2000 to 06.03.2000. The accident occurred due to the negligent driving by the 2[nd] respondent. The 1[st] respondent is the owner of the vehicle. In his OP(MV), the appellant claimed MACA No.3110/2008 : 4 : that he was a CITU worker earning ₹5,000/-. The appellant claimed ₹6,36,000/- as compensation. The appellant subsequently impleaded additional respondents 4 and 5, who are the owner and driver of the other lorry. 3. Respondents 1 and 2, owner and driver of the Mini lorry, remained _ex parte_ . The 3[rd] respondent-insurer in their written statement admitted the policy of the Mini lorry. However, the 3[rd] respondent stated that the claimant was an unauthorised occupant in the goods vehicle and he was not entitled to get compensation from the insurer. The 3[rd] respondent refuted all other material averments made by the appellant. 4. The appellant produced Exts.A1 to A8 documents and examined himself as PW1. Respondents did not adduce any evidence. The Tribunal, after appreciating the evidence on record, held that the accident occurred due to the rash and negligent driving by the 2[nd] respondent-driver of the Mini lorry. The Tribunal assessed the compensation MACA No.3110/2008 : 5 : ## payable as ₹42,890/- under the following heads:- |**Head**|**Amount awarded**| |---|---| |Medical and transportation expenses<br>(supported by bills)|₹11,140| |Damage to clothes|₹250| |Attendant expenses & extra nourishment|₹2,500| |Shock, pain & sufferings|₹15,000| |Loss of earning|₹8,000| |Loss of amenities & convenience|₹6,000| |**Total**|**₹42,890**| However, the Tribunal found that the contention of the appellant that he was travelling in the Mini lorry as an employee of the owner of the goods, cannot be accepted. The Tribunal further found that the versions given by the appellant in this regard are inconsistent and accordingly, treated the appellant as a gratuitous passenger. The 3[rd] respondent therefore, was absolved of their liability to pay compensation. The Tribunal directed the respondents 1 and 2 to deposit the sum of ₹42,890/- with interest at the rate of 7.5%. MACA No.3110/2008 : 6 : 5. The learned counsel for the appellant argued that the compensation awarded by the Tribunal is not “just compensation”. The learned counsel for the appellant stated that the appellant was a Coolie, who was working as employee of the owner of the vehicle at the time of accident. The notional monthly income of the appellant taken by the Tribunal is ₹2,000/-, which is very low. Ext.A6 document would show that the appellant's income is around ₹5,000/-. In the circumstances, the counsel contended that the compensation amount is to be increased and the insurer should be made liable to pay the amount. 6. The learned Standing Counsel for the 3[rd] respondent-insurer argued that the appellant was a gratuitous passenger in the Mini lorry. The Hon'ble Apex Court in _**National Insurance Co. Ltd. v. Kaushalaya Devi and others** [2008 ACJ 2144]_ , has held that when a person, who was travelling in a public carriage goods vehicle, for a purpose other than the one for which he was entitled to MACA No.3110/2008 : 7 : travel, then in such eventuality, the insurance company is not liable to pay the compensation. The learned Standing Counsel also relied on the judgment in _**National Insurance Co. Ltd. v. Prema Devi and others** [2008 ACJ 1149]_ to contend that a claimant travelling in a goods vehicle as a gratuitous passenger cannot claim payment of compensation amount from the insurance company. 7. I have heard the learned counsel for the appellant and learned Standing Counsel for the 3[rd] respondent. 8. The appellant has no consistent case as regards his employment or as regards his travelling in the Mini lorry on the date of accident. Initially, when the OP(MV) was presented on 20.04.2001, the appellant contended that he was travelling in the Mini lorry as a passenger. Subsequently, in August, 2007, the appellant by amending the OP(MV), claimed that he was an employee of the owner of the goods in the vehicle. Evidence on record shows that the vehicle did not carry any goods at the time of the MACA No.3110/2008 : 8 : accident. While examination of the appellant as PW1, the appellant stated that he had travelled in the lorry for collecting sand for his own purpose. It was in the afore circumstances that the Tribunal came to the conclusion that the appellant was a gratuitous passenger in a goods lorry. I do not find any illegality in the conclusion of the Tribunal in that regard. 9. As regards the income of the appellant, it is to be noted that in the OP(MV) he claimed himself to be a Coolie worker. During the proceedings in the OP(MV), the appellant took another stand that he is employee of the owner of the vehicle. The appellant produced Ext.A6 certificate from Ernakulam District Charal Thozhilali Union to prove his income. It is a moot question as to how a trade union can issue income certificate to a member of their union. No union representative was examined to prove the certificate. Ext.A6 is therefore unreliable. 10. However, fact remains that the appellant was an MACA No.3110/2008 : 9 : able-bodied person doing some work in the year 2000, when the accident took place. Going by the guidelines given in the judgment of the Apex Court in _**Ramachandrappa v. The Manager, Royal Sundaram Alliance Insurance Co. Ltd.** [(2011) 13 SCC 236]_ , the notional income of a daily wage worker, having no proof of income, should be treated as ₹2,500/- in the year 2000. The Tribunal has calculated the income taking ₹2,000/- as notional income and granted compensation for loss of earning for a period of four months. As the notional income of the appellant is being fixed at ₹2,500/-, the appellant is held entitled to an additional compensation of **₹2,000/-** towards loss of earning. 11. The appellant claimed disability benefits relying on Ext.A8 medical certificate which assessed permanent disability of 12%. The Tribunal found that a part of the document cannot be read in evidence without examination of the author. The said document was marked subject to MACA No.3110/2008 : 10 : proof. The person who signed Ext.A8 was not examined. In the circumstances, the Tribunal was justified in not arriving at a finding of permanent disability of the appellant. The argument of the learned counsel for the appellant in this regard is therefore only to be rejected. 12. The Tribunal has granted medical and transportation expenses of 11,140/-, damage to clothes of ₹250/-, attendant expenses and extra nourishment of ₹2,500/-, shock, pain and suffering of ₹15,000/- and loss of amenities and convenience of ₹6,000/-. Going by the standardised rates being followed by this Court, the compensation for damage to clothing requires modification. Accordingly, the compensation of ₹250/- granted by the Tribunal towards damage to clothes will stand enhanced to ₹750/-. In the circumstances, the appellant will be entitled to an additional compensation of **₹2,500/-** only (₹2,000/- towards loss of earning and ₹500/- towards MACA No.3110/2008 : 11 : damage to clothes). The amount will carry interest at the rate of 7.5 % from the date of the OP(MV). The appeal is partly allowed on the above lines. The 1[st] respondent is directed to deposit the additional compensation with interest, within a period of one month. The appeal as against the 3[rd] respondent will stand dismissed. Sd/- **N. NAGARESH, JUDGE** aks/16/06/2020