Tapan Mistri v. National Insurance Company Limited (MACA No. 2600/2022) and connected matters

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN MONDAY, THE 20[TH] DAY OF MARCH 2023 / 29TH PHALGUNA, 1944** **MACA NO. 2600 OF 2022** **AGAINST THE AWARD OPMV 1378/2017 OF MOTOR ACCIDENT CLAIMS** **TRIBUNAL, KOZHIKODE** ## **APPELLANT/PETITIONER:** TAPAN MISTRI, AGED 35 YEARS S/O NIRMAL MISTRI, DAKSHIN CHERI PARA BARIYA, BASANT SAOUTH 24, PARGANAS., PIN - 743329 BY ADVS. V.N.RAMESAN NAMBISAN MOHANAN P.G. ## **RESPONDENT/RESPONDENT NO.2:** NATIONAL INSURANCE COMPANY LIMITED REPRESENTED BY ITS BRANCH MANAGER, 2ND FLOOR, NOOR COMPLEX, ARAYIDATH PALAM P.B.NO.811, KOZHIKODE, PIN-673 004. BY ADVS. LATHA SUSAN CHERIAN GEORGE A.CHERIAN(K/611/2014) GEORGE CHERIAN (SR.)(G-81) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 20.03.2023, ALONG WITH MACA.473/2020, 470/2020 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 2600 OF 2022 & con.cases 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN MONDAY, THE 20[TH] DAY OF MARCH 2023 / 29TH PHALGUNA, 1944 MACA NO. 473 OF 2020** **AGAINST THE AWARD IN OPMV 1378/2017 OF MOTOR ACCIDENT** **CLAIMS TRIBUNAL, KOZHIKODE** ## **APPELLANT/2ND RESPONDENT IN OPMV NO.1378/2017:** NATIONAL INSURANCE COMPANY LIMITED 2ND FLOOR, NOOR COMPLEX, ARAYIDATH PALAM P.B.NO.811, KOZHIKODE, REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G.ROAD, BAZAR (PO), ERNAKULAM, PIN-682 016. BY ADVS. LATHA SUSAN CHERIAN GEORGE A.CHERIAN(K/611/2014) GEORGE CHERIAN (SR.)(G-81) ## **RESPONDENT/PETITIONER & 1ST RESPONDENT IN OPMV** ## **NO.1378/2017:** 1 TAPAN MISTRI, AGED 34 YEARS S/O. NIRMAL MISTRI, DAKSHIN CHERI PARA BARIYA, BASANTH SAOUTH 24, PARGANAS, PIN-700 150. 2 SABEER @ SAFEER, AGED 42 YEARS, S/O. MAMMED KOYA, AREEKAL THAZHAM POTTA, VELLIPARAMBA (PO), KOZHIKODE DISTRICT, PIN-673 008. BY ADV RAMESAN V N THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 20.03.2023, ALONG WITH MACA.2600/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 2600 OF 2022 & con.cases 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN MONDAY, THE 20[TH] DAY OF MARCH 2023 / 29TH PHALGUNA, 1944 MACA NO. 470 OF 2020** **AGAINST THE AWARD IN OPMV 1376/2017 OF MOTOR ACCIDENT** **CLAIMS TRIBUNAL, KOZHIKODE** ## **APPELLANT/2ND RESPONDENT IN OPMV NO.1376/2017:** NATIONAL INSURANCE COMPANY LIMITED 2ND FLOOR, NOOR COMPLEX, ARAYIDATH PALAM, P.B.NO.811, KOZHIKODE, REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G.ROAD, BAZAR (PO), ERNAKULAM, PIN-682016. BY ADVS. LATHA SUSAN CHERIAN GEORGE A.CHERIAN(K/611/2014) GEORGE CHERIAN (SR.)(G-81) ## **RESPONDENT/PETITIONER & 1ST RESPONDENT IN OPMV** **NO.1376/2017:** 1 REJJAK SHEKH @ RAJA SHEQ, AGED 30 YEARS S/O.AANAR SHEKH, JUSHKHALI, NORTH, 24 PARGANAS, WEST BENGAL, PIN-700124. 2 SABEER @ SAFEER, AGED 42 YEARS S/O.MAMMED KOYA, AREEKAL THAZHAM POTTA, VELLIPARAMBA (PO), KOZHIKODE DISTRICT -673008. BY ADV RAMESAN V N THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 20.03.2023, ALONG WITH MACA.2600/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 2600 OF 2022 & con.cases 4 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN MONDAY, THE 20[TH] DAY OF MARCH 2023 / 29TH PHALGUNA, 1944 MACA NO. 478 OF 2020** **AGAINST THE AWARD IN OPMV 1377/2017 OF MOTOR ACCIDENT** **CLAIMS TRIBUNAL, KOZHIKODE** ## **APPELLANT/2ND RESPONDENT IN OPMV NO.1377/2017:** NATIONAL INSURANCE COMPANY LIMITED 2ND FLOOR, NOOR COMPLEX, ARAYIDATH PALAM, P.B.NO.811, KOZHIKODE, REPRESENTED BY ITS MANAGER, REGIONAL OFFICE, M.G.ROAD, BAZAR(PO), ERNAKULAM, PIN-682 016. BY ADVS. LATHA SUSAN CHERIAN GEORGE CHERIAN (SR.)(G-81) GEORGE A.CHERIAN(K/611/2014) ## **RESPONDENT/PETITIONERS 1 TO 6 & 1ST RESPONDENT IN OPMV** ## **NO.1377/2017:** 1 LUTFARNESA BEGAM, AGED 62 YEARS M/O.LATE FAJLU, HIR GORH RABINDRA NAGAR, BANSHRA, BANSRA, SOUTH 24 PARGANAS, WEST BENGAL, PIN-700 150. 2 ROJI SEKH, AGED 32 YEARS W/O.LATE FAJLU, LASKAR PARA MAKHAL TALA, CANNING SOUTH 24, PARAGANAS, PIN-700 150. 3 AKBAR GAZI, AGED 24 YEARS, S/O.FAJLU, HIR GORH RABINDRANAGAR, BANSHRA, BANSRA, SOUTH 24 PARGANAS, WEST BENGAL, PIN-700 150. 4 FATIMA KHATUN, AGED 21 YEARS, D/O.FAJLU, HIR GORH RABINDRA NAGAR, BANSHRA, BANSRA, SOUTH 24 PARGANAS, WEST BENGAL, PIN-700 150. MACA NO. 2600 OF 2022 & con.cases 5 5 AJGAR GAZI, AGED 18 YEARS, S/O.FAJLU, HIR GORH RABINDRA NAGAR, BANSHRA, BANSRA, SOUTH 24 PARGANAS, WEST BENGAL, PIN-700 150. 6 HALIMA KHATUN (MINOR), AGED 16 YEARS D/O.LATE FAJLU, HIR GORH RABINDRA NAGAR, BANSHRA, BANSRA, SOUTH 24 PARGANAS, WEST BENGAL REPRESENTED BY HER MOTHER ROJI SEKH, AGED 32 YEARS, W/O.LATE FAJLU, LASKAR PARA MAKHAL TALA, CANNING SOUTH 24, PARAGANAS, PIN-700 150. 7 SABEER @ SAFEER, AGED 42 YEARS S/O.MAMMED KOYA, AREEKAL THAZHAM POTTA, VELLIPARAMBA (PO). KOZHIKODE DISTRICT, PIN-673 008. BY ADVS. RAMESAN V N P.YADHU KUMAR SWETHA K.S.(K/001604/2022) KEERTHI JAYAKUMAR(K/002958/2022) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 20.03.2023, ALONG WITH MACA.2600/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 2600 OF 2022 & con.cases 6 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN MONDAY, THE 20[TH] DAY OF MARCH 2023 / 29TH PHALGUNA, 1944 MACA NO. 2104 OF 2022** **AGAINST THE AWARD IN OPMV 1376/2017 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE** ## **APPELLANT/PETITIONER:** REJJAK SHEKH @ RAJA SHEQ, AGED 33 YEARS S/O. AANAR SHEKH , JUSHKHALI NORTH, 24 PARGANAS, WEST BENGAL, PIN - 743446 BY ADV V.N.RAMESAN NAMBISAN ## **RESPONDENT/RESPONDENT NO.2:** NATIONAL INSURANCE COMPANY LIMITED REPRESENTED BY ITS BRANCH MANAGER IIND FLOOR, NOOR COMPLEX, ARAYIDATH PALAM, P.B. NO. 811, KOZHIKODE, PIN - 673004 LATHA SUSAN CHERIAN GEORGE A.CHERIAN(K/611/2014) GEORGE CHERIAN (SR.)(G-81) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 20.03.2023, ALONG WITH MACA.2600/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 2600 OF 2022 & con.cases 7 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN MONDAY, THE 20[TH] DAY OF MARCH 2023 / 29TH PHALGUNA, 1944 MACA NO. 2597 OF 2022** **AGAINST THE AWARD IN OPMV 1377/2017 OF MOTOR ACCIDENT** ## **CLAIMS TRIBUNAL, KOZHIKODE** ## **APPELLANTS/PETITIONERS:** 1 LUTFARNESA BEGAM, AGED 64 YEARS M/O LATE FAJLU, HIR GORH RABINDRA NAGAR, BANSHRA, BANSRA, SOUTH 24 PARGANAS, WEST BENGAL., PIN - 743363 2 ROJI SEKH, AGED 33 YEARS W/O LATE FAJLU, LASKAR PARA MAKHAL TALA, CANNING SOUTH 24, PARGANAS., PIN - 743363 3 AKBAR GAZI, AGED 25 YEARS S/O LATE FAJLU, HIR GOR, RABINDRA NAGAR, BANSHRA, BANSRA, SOUTH 24, PARGANAS, CANNING1,WEST BENGAL., PIN - 743363 4 FATIMA KHATUN, AGED 22 YEARS D/O LATE FAJLU, HIR GOR, RABINDRA NAGAR, BANSHRA, BANSRA, SOUTH 24, PARGANAS, CANNING1,WEST BENGAL., PIN - 743363 5 AJGAR GAZI, AGED 19 YEARS S/O LATE FAJLU, HIR GOR, RABINDRA NAGAR, BANSHRA, BANSHRA, SOUTH 24, PARGANAS, CANNING1,WEST BENGAL., PIN - 743363 6 HALIMA KHATUN, AGED 17 YEARS D/O LATE FAJLU (LATE), HIR GOR, RABINDRA NAGAR, BANSHRA, BANSRA, SOUTH 24, PARGANAS, CANNING1,WEST BENGAL, MINOR REP. BY MOTHER 2ND PETITIONER, ROJI SEKH, W/O LATE FAJLU, LASKAR PARA MAKHAL TALA, CANNING SOUTH 24, PARGANAS., PIN – 743363 V.N.RAMESAN NAMBISAN MACA NO. 2600 OF 2022 & con.cases 8 MOHANAN P.G. ## **RESPONDENT/RESPONDENT NO.2:** NATIONAL INSURANCE COMPANY LIMITED REPRESENTED BY ITS BRANCH MANAGER, 2ND FLOOR, NOOR COMPLEX, ARAYIDATH PALAM P.B.NO.811, KOZHIKODE, PIN-673 004. BY ADVS. LATHA SUSAN CHERIAN GEORGE A.CHERIAN(K/611/2014) GEORGE CHERIAN (SR.)(G-81) THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 20.03.2023, ALONG WITH MACA.2600/2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 2600 OF 2022 & con.cases 9 ## **JUDGMENT** **[MACA Nos.2600/2022, 473/2020, 470/2020, 478/2020, 2104/2022, 2597/2022]** I am disposing of all these six appeals through this judgment since they emanate out of the same accident and Award of the Motor Accidents Claims Tribunal, Kozhikode (‘Tribunal’ for short). 2. I will first state the most essential facts. 3. On 03.09.2015, the appellant in MACA No.2104 of 2022 (who will hereinafter be referred to by his name Sri.Rejjak Shekh), along with appellant in MACA No.2600 of 2022 (‘Sri.Tapan Mistri’ hereinafter for ease) and Sri. Fajlu Gazi (who will hereinafter referred to as the ‘deceased’ since he died in the accident, and whose legal heirs are the appellants in MACA No.2597 of 2022), was travelling in a Mini Lorry, accompanying a Concrete Mixture machine which belonged to their employer, it turned turtle on account of the rash and negligent driving of its driver, who is also its owner. 4. Sri.Rejjak Shekh and Sri.Tapan Mistri suffered injuries, while Fajlu Gazi died. Consequently, Sri.Rejjak Shekh filed O.P(MV)No.1376 of 2017; while Sri.Tapan Mistri filed MACA NO. 2600 OF 2022 & con.cases 10 O.P(MV)No.1378 of 2017, seeking compensation for their injuries before the learned Tribunal. As far as the legal heirs of the deceased are concerned, they filed O.P(MV)No.1377 of 2017 seeking compensation for his death. 5. All the afore three O.Ps were tried and disposed of together by the learned Tribunal, awarding Sri.Rejjak Shekh an amount of Rs.5,27,000/- as compensation, against his claim of Rs.15 lakhs and an amount of Rs.1,05,000/- to Sri.Tapan Mistri, against his claim of Rs.7 lakhs. As far as the deceased is concerned, his legal heirs were granted an amount of Rs.23,66,000/- towards compensation for his death, though an amount of Rs.40 lakhs had been claimed. All of them thus assail the Awards as being inadequate. 6. While the learned Tribunal awarded compensation to the claimants as afore, it found the National Insurance Company Ltd. - which insured the offending vehicle - to be fully responsible for payment of the same and they have thus come up in appeal before this Court through MACA Nos.470 of 2020, 473 of 2020 and 478 of 2020, impelling a singular contention that, since the injured and the deceased were standing on the cargo platform of the offending vehicle and MACA NO. 2600 OF 2022 & con.cases 11 were travelling in the same as gratuitous passengers, they are deserving of being exonerated from any liability under the Insurance Policy issued by them in favour of the owner of the offending vehicle. 7. I have heard Sri.Geroge A.Cheriyan – appearing for the National Insurance Company Ltd. in all these appeals and Sri.Ramesan Nambisan appearing for the claimants/appellants in MACA Nos.2597 of 2022, 2104 of 2022 and 2600 of 2022. 8. Sri.Ramesan Nambisan vehemently argued that the compensation awarded by the Tribunal in each of the afore Original Petitions is inadequate and thus prayed that it be enhanced. He argued that the notional income adopted in favour of the injured and the deceased by the Tribunal is in error, since it was asserted and proved that they were earning much higher than Rs.10,000/- per month, in their capacity as specialized concrete workers. He further argued that the compensation under various other heads is also less than deserving; and thus prayed that they be enhanced suitably. 9. As said above, Sri.Geroge A.Cheriyan did not contest the compensation awarded by the Tribunal, but only its findings to the effect that his client was responsible to honour MACA NO. 2600 OF 2022 & con.cases 12 the same. For this purpose, he relied upon the statements of PW2 - who is the employer of the deceased and injured - to argue that they were, in fact, on the cargo platform of the offending vehicle, travelling as gratuitous passengers; and thus his client having no responsibility to pay the compensation adjudicated. 10. I have considered the afore rival submissions and have also gone through the evidence on record – copies of which have been handed over across the Bar by the learned counsel for the parties, with the express consent that it can be acted upon by this Court without dispute. 11. I will first deal with the claim for enhancement of the compensation awarded by the Tribunal to three sets of claimants. ## **I. MACA No.2600/2022** 12. As far as Sri.Tapan Mistri – appellant in this appeal is concerned, his original petition has been allowed by the Tribunal reckoning the monthly income to be Rs.10,000/-. Pertinently, no evidence was led by him in any manner to either prove his income or his avocation; though PW2 - his MACA NO. 2600 OF 2022 & con.cases 13 employer, testified that he was engaged by him, along with the deceased and Sri.Rejjak Shekh as concrete workers, accompanying his Concrete Mixture machine in the offending vehicle. Obviously, the learned Tribunal could have only then adopted a notional income in his favour, which it has correctly done as being Rs.10,000/- per month, being guided by the judgment of the Hon’ble Supreme Court in **Ramachandrappa** **v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** [(2011) 13 SCC 236], which postulates that, in the case of a person who was working as a ‘coolie’, or with an unascertainable income in the year 2015 – when the accident occurred - only the afore figure could be reckoned. 13. Going by the Medical records involved in this case, particularly Ext.A16 - Wound Certificate, Sri.Tapan Mistri suffered fracture of left radius and was treated only as an outpatient. Though he did not produce any Disability Certificate, the learned Tribunal considered the factum of fracture on the left radius and assessed him to have a disability of 5%. 14. The Tribunal then awarded Rs.10,000/- and Rs.2,000/- respectively under the head ‘Pain and Sufferings’ MACA NO. 2600 OF 2022 & con.cases 14 and ‘Extra Nourishment’, though it is on record that the appellant did not have to endure any inpatient treatment. Obviously, it would not require this Court to modify the said figures in any manner. However, in the case of ‘Loss of Amenities’ taking note of the fracture sustained by the appellant, I deem it appropriate to enhance it by Rs.5,000/-. I do not see any reason to disturb the other findings of the learned Tribunal, particularly because it has, in addition, offered him compensation of an amount of Rs.20,000/- under the head ‘Loss of Earnings’. ## **II. MACA No.2104/2022** 15. I will now deal with this appeal, which is filed by Sri.Rejjak Shekh, who was also injured. The same conclusions regarding the notional income of Sri.Tapan Mistri would fully apply to this case also. I do not intend to repeat it. Suffice to say, the adoption of Rs.10,000/- per month as his notional income is confirmed in this case also. It then went on to take Award Rs.25,000/- each under the head ‘Pain and Suffering’ and ‘Loss of Amenities’ and then has granted compensation towards ‘Bystander’s Expenses’ at the rate of Rs.500/- per day, but confining that against ‘Extra Nourishment’ to mere MACA NO. 2600 OF 2022 & con.cases 15 Rs.3,000/- as a consolidate amount. 16. I am of the view that, though the compensation under the head 'Bystanders Expenses is justified, that under the head 'Extra Nourishment' is inadequate because Sri.Rejjak Shekh had to endure hospitalization for 37 days having suffered severe injuries, including fracture of his hip. I, therefore, propose an amount of Rs.200/- per day as expenses under that head. 17. That said, the medical evidence relating to Sri.Rejjak Shekh, especially Ext.A3 - wound certificate, establishes that he has suffered the following injuries: “fracture anterior column right acetabulam, fracture left superior and inferior pubic ramus, lacerated wound 5x3 cm over medial aspect of right ankle exposing bone with contamination, abrasion 1x1 cm left index finger and graced abrasion left iliac fossa.” 18. As said above, he was treated as an inpatient for 37 days and the learned Tribunal has recorded that he had to go through several surgical proceedings, which are available from Ext.X1 - Case Records. Ext.A9 disability certificate certifies his permanent disability to be 25%, which has been accepted by the learned Tribunal also. Therefore, though the MACA NO. 2600 OF 2022 & con.cases 16 compensation under the head 'loss of disability' does not require to be altered, I am of the firm view that the compensation under the head 'pain and suffering, deserves to be modified marginally. I propose the same to be Rs.40,000/-. ## **III. MACA No.2597/2022** 19. Finally, as regards the compensation claimed by the legal heirs of the deceased is concerned, the learned Tribunal has again adopted his notional income to be Rs.10,000/- per month. For the same reasons I have said above with respect to Sri.Tapan Mistri, the said figure is confirmed, especially when the Tribunal has correctly added 10% to it towards future prospects, as required under **National Insurance Company Ltd. v. Pranay Sethi** [2017 (4) KLT 662 (SC)]. I notice that the learned Tribunal has then granted apposite compensation for 'loss of consortium' to each of the claimants; while awarding Rs.15,000/- each under the head 'loss of estate' and 'funeral expenses'. It has also awarded Rs.80,000/under the head 'transportation of dead body' because the body of the deceased had to be taken to West Bengal. I cannot, therefore, find any scope for enhancement in this case, since even the multiplier, admittedly, has been adopted correctly by MACA NO. 2600 OF 2022 & con.cases 17 the learned Tribunal. ## **IV. MACA Nos.470/2020, 473/2020 and 478/2020** 20. The afore being said, my attention is now drawn to the contention of the Insurance Company that they have no liability to honour the compensation awarded by the Tribunal and which has been modified or confirmed by this Court as afore. 21. As indited above, Sri.George A.Cherian argues that the evidence on record establishes that the injured and the deceased were travelling in the cargo platform of the lorry as gratuitous passengers. However, as rightly found by the learned Tribunal, PW2 - who is the owner of the Concrete Mixture machine which had been carried in the said vehicle - categorically deposed that Sri.Tapan Mistri, Sri.Rejjak Shekh and the deceased were his employees, who were asked by him to accompany the said machine in the vehicle. Ext.A1- FIR, which was registered on the basis of the statement of the owner-cum-driver of the offending vehicle, records indubitably that the injured and the deceased were sitting inside the Driver's Cabin of the offending lorry; while six others were travelling on the cargo platform. The investigation carried out MACA NO. 2600 OF 2022 & con.cases 18 by the police, leading to Ext.A4 - Final Report, contains statements of other witnesses, who spoke in tandem and who corroborated the afore statements of the owner - cum - driver of the vehicle. One, therefore, fails to understand how the Insurance Company now says that the injured and the deceased were travelling on the cargo platform of the vehicle. Such arguments are certainly only deserving of being repelled and I do so. 22. The remaining argument of the Insurance Company is that the injured and the deceased were travelling as gratuitous passengers. This again, is completely belied by the testimony of PW2, which remains unimpeached and uncontroverted, even though he was subjected to cross examination. When the police records – which have also not been challenged or assailed by the Insurance Company – record that the injured and the deceased were inside the cabin of the offending vehicle and when their status as employees is confirmed by PW2, their employer – which also remains wholly uncontroverted, the conclusions arrived at by the learned Tribunal can only be found to be fully justified and without any error. MACA NO. 2600 OF 2022 & con.cases 19 23. Moving on, as rightly found by the learned Tribunal, Ext.B1 policy is a “Package” one which includes liability for personal injury to three employees and one non-fare passenger, for which separate premium had been received by the Insurance Company from the owner – cum - driver of the vehicle. Obviously, the injured and the legal heirs of the deceased are fully entitled to be compensated by the Insurance Company; though a corollary question arises as to whether there is violation of policy conditions, when the owner allowed six other passengers to travel on the cargo platform of the vehicle. In this regard, even though notice has been validly served on the owner - cum - driver of the offending vehicle, who has been arrayed as 2[nd] respondent in the appeals of the Insurance Company - he has chosen not to be present in person or to be represented through counsel; inferentially guiding me to the impression that he has nothing to offer in opposition to the assertions made by them. 24. The Police Charge Sheet discloses without doubt, that the owner - cum - driver was charged with offences punishable under Section 123(iii), read with Section 177 of the MV Act, for carrying passengers in the platform area of the lorry and this has been so established. There is, therefore, MACA NO. 2600 OF 2022 & con.cases 20 great force in the contentions of the learned standing counsel for the Insurance Company, that they are deserving of being granted the liberty of proceeding against the owner of the insured vehicle, for recovery of the compensation payable to the legal heirs of the deceased and to Sri.Rejjak Shekh and Sri.Tapan Mistri. Resultantly, ## (I) **MACA No.2600/2022** (a) The compensation under the head 'loss of amenities' is enhanced to Rs.10,000/-, from Rs.5,000/- now awarded by the Tribunal. (b) The compensation awarded by the Tribunal under all other heads is confirmed. (c) Consequently, the appellant will be at full liberty to recover the compensation, as enhanced by this Court, from the Insurance Company, along with interest at the rate of 8% as awarded by the Tribunal, from the date of claim until it is recovered. He will also be entitled to proportionate costs on the enhanced amount as ordered by the Tribunal. - (d) In view of the afore, the amount as fixed above shall MACA NO. 2600 OF 2022 & con.cases 21 be deposited by the Insurance Company before the learned Tribunal, within a period of two months from the date of receipt of a copy of this judgment. ## B. **MACA No.2104/2022** a) The compensation under the head 'Pain and Suffering' is enhanced to Rs.50,000/-, from Rs.25,000/- now awarded by the Tribunal. b) The compensation under the head 'Extra Nourishment' is enhanced to Rs.7,400/-, from Rs.3,000/awarded in the impugned order, reckoning Rs.200/- per day expenses, for 37 days of hospitalisation. c) In all other heads, the compensation awarded by the Tribunal will remain unaltered. d) Consequently, the appellant will be at full liberty to recover the compensation, as enhanced by this Court, from the Insurance Company, along with interest at the rate of 8% as awarded by the Tribunal, from the date of claim until it is recovered. He will also be entitled to proportionate costs on the enhanced amount, as ordered by the Tribunal before it. e) In view of the afore, the amount as fixed above shall be deposited by the Insurance Company before the learned MACA NO. 2600 OF 2022 & con.cases 22 Tribunal, within a period of two months from the date of receipt of a copy of this judgment. ## C. **MACA No.2597/2022** This appeal is dismissed, without granting any enhancement in compensation as awarded by the Tribunal. ## C. **MACA Nos.470/2020, 473/2020 and 478/2020** All these appeals are disposed of, confirming the findings of the learned Tribunal; however, modifying the impugned Awards allowing the appellant – Insurance Company, to recover the compensation – as modified or confirmed by this Court ut supra - ordered in OP(MV) No.1376/2018, 1377/2018 and 1378/2018, after paying the claimants therein, from the second respondent in these matters - who is the owner-cumdriver of the offending vehicle. ## **Sd/- DEVAN RAMACHANDRAN** ## **JUDGE** mc/stu/lsn