The Oriental Insurance Company Ltd v. Shanavas @ Shaji S/O Sham su deen, Swantham Charitable Society, Manikantan C.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE A.M.BABU THURSDAY, THE 16TH DAY OF MARCH 2017/25TH PHALGUNA, 1938 **MACA.No. 844 of 2012 () ------------------------** AGAINST THE AWARD IN OPMV 1292/2008 of M.A.C.T.,KOLLAM DATED 23-01-2012 APPELLANT(S)/3RD RESPONDENT: --------------------------- THE ORIENTAL INSURANCE COMPANY LTD COCHIN, NOW REPRESENTED BY ITS ASSISTANT MANAGER, REGIONAL OFFICE, METRO PALACE, KOCHI 18. BY ADV. SRI.MATHEWS JACOB (SR.) RESPONDENTS/PETITIONER AND RESPONDENTS 1 AND 2: ------------------------------------------------- 1. SHANAVAS @ SHAJI S/O. SHAMSUDEEN,KUZHIVILA VEEDU, KILIKOLLOOR, KALLUMTHAZHAM.P.O, KOLLAM - 691 315. 2. THE PRESIDENT, SWANTHAM CHARITABLE SOCIETY, KANNANALOOR, KOLLAM - 691 315. 3. MANIKANTAN.C, S/O. CHELLAPPAN ACHARI, CHARUVILA.P.O, KANNANALLOOR, KOLLAM - 691 315. R1 BY ADV. SRI.K.ABDUL JAWAD R1 BY ADV. SRI.MATHEW A KUZHALANADAN R1 BY ADV. SMT.SYAMA MOHAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16-03-2017, ALONG WITH MACA. 73/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **P.R. RAMACHANDRA MENON & A. M. BABU, JJ.** .............................................................................. **M.A.C.A.No.844 OF 2012 & M.A.C.A.No.73 OF 2015** ......................................................................... **Dated this the 16[th] March, 2017** ## **J U D G M E N T** ## **P.R. Ramachandra Menon, J.** Whether the compensation awarded by the Tribunal fixing the quantum as Rs.13 ,03,000/- in respect of serious injuries sustained by the claimant, with a permanent disability of 80%, is correct or sustainable, is the question mooted in these appeals. M.A.C.A.No.844 of 2012 has been preferred by the Insurer of the vehicle concerned; whereas M.A.C.A.No.73 of 2015 has been preferred by the claimant/injured. 2. In the former appeal preferred by the Insurance Company, it is contended that exorbitant amounts have been awarded by the Tribunal under different Heads, particularly by awarding a sum of Rs.5 lakhs towards loss/reduction in earning capacity, after granting a sum of Rs.4,89,600/-towards **M.A.C.A.No.844 OF 2012 & 73 OF 2015** **2** compensation for continuing permanent disability, which by itself is contrary to the law declared by a Full Bench of this Court in _**Oriental Insurance Co.Ltd. vs. V. Hariprasad**_ **(2005(4)KLT 977)** . It is further contended that, though right of recovery has been reserved in favour of the Company for violation of the statutory/policy conditions, in so far as the policy issued was an 'Act only Policy' and further that the claimant was travelling in the Ambulance from Hyderabad, back to the State, after delivering the dead body taken from Kerala to Hyderabad, he was only a 'gratuitous passenger'. Despite the specific finding arrived at by the Tribunal that the claimant was travelling only as a gratuitous passenger, not covered under the Policy, it was quite wrong for the Tribunal to have directed the Insurance Company to have the claim satisfied and thereafter to go for recovery from the owner of the vehicle. 3. In the appeal preferred by the claimant, it is pointed out that the plight of the appellant is quite pitiable as taken note of by the Tribunal in paragraphs 16 and 17 of the Award. It has **M.A.C.A.No.844 OF 2012 & 73 OF 2015** **3** been found by the Tribunal that the injured is not in a position even to stand up, to meet the daily routine. He was maintaining a family by virtue of the income derived as a fruit merchant. It is contended that, despite the claim that he was having a monthly income of Rs.6000/-, the Tribunal reckoned only Rs.3000/- as notional monthly income for working out compensation and that adequate amounts have not been awarded under other relevant heads as well. Hence the claimant has preferred the appeal, seeking for enhanced compensation. 4. Heard the learned Sr. Counsel appearing for the Insurance Company and the learned counsel appearing for the claimant, at length. 5. The evidence adduced before the Tribunal consists of version of the claimant as P.W.1 and documents produced as Exts.A1 to A7; besides Ext.C1 disability certificate. 6. The occurrence of the accident, as discussed by the Tribunal, was on 08.04.2007. The claimant had accompanied a dead body to Hyderabad in the Ambulance bearing No.KL.2/Z **M.A.C.A.No.844 OF 2012 & 73 OF 2015** **4** 3250. The vehicle was owned by the first respondent Society, driven by the second respondent and insured by the third respondent. After delivering the dead body at the destination, the claimant was returning in the very same Ambulance. When it reached the place of occurrence, it went out of the control and hit against a tree standing on the side of the road, causing serious injuries to the claimant including rupture of his spinal cord. Immediately, he was taken to New Life Hospital, Hyderabad, from where he was taken to S.P.Fort Hospital, Thiruvananthapuram. Attributing rashness and negligence on the driver of the Ambulance, a Claim Petition was preferred seeking for a total compensation of Rs.15 lakhs. 7. The claim was resisted only by the Insurance Company, as noted by the Tribunal in paragraph 3 of the Award. Based on the materials produced, it was held that the accident was only because of the negligence on the part of the second respondent/driver of the Ambulance. The injuries sustained by the claimant have been noted by the Tribunal in paragraph 10, **M.A.C.A.No.844 OF 2012 & 73 OF 2015** **5** ## which is reproduced below for convenience of reference: _“There is evidence of anterior dislocation of D12 over L1 vertebra. There is focal rupture of anterior longitudinal ligament at this level with hyper intense signal beneath the ligament at L1, L2 level, suggestive of prespinal edema._ _There is rupture of D12 L1 disc with herniation of nuclear material through anterior border of L1 vertebra. Diffuse hyper intense signal noted in the disc in FSE T2 W and STIR images. There is also focal break in the posterior longitudinal ligament with marked retropulsion of L1 vertebral body into spinal canal, causing severe compression of conus medullaris. The spinal canal is almost totally obliterated at this level._ _There is also evidence of posterior column instability with rupture of ligamentum flava. Bilateral facet subluxation noted at D12 L1 level. There is also evidence of right lateral subluxation with hyper intense signal in the right paraspinal region at L1 level. Diffuse hyper intense signal is also seen in the posterior paraspinal soft tissue in the dorso--lumbar region, suggestive of paraspinal contusion. Normal MR morphology noted in the rest of the visualized dorsoLumbar vertebral bodies, pedicles, facet, spinous and transverse processes. The marrow shows normal signal_ **M.A.C.A.No.844 OF 2012 & 73 OF 2015** **6** _for age._ _Rest of inter-vertebal discs show normal height and are in line with the vertebral body margins all around. The annulus is uniform dark in signal and necleus pulposus show hyper intense signal in FSET2 W1. The facet process joints and neural foramina are normal. So it is evident that the petitioner had sustained spinal cord injury and he was laid up. Ext.C1 is the disability. It shows the disability to tune of 80%. So the petitioner has become almost like a vegetable. He cannot pursue his daily pursuits without the help of others._ 8. The claimant was issued with Ext.C1 Disability Certificate certifying the extent of disability as 80%, which has been accepted by the Tribunal. Still, he was caused to be examined by the Tribunal as P.W.1. Taking note of the facts and circumstances, the plight has been discussed by the Tribunal in paragraph 16 and 17 of the Award, which are extracted below: _“16. Ext.C1 is the disability certificate. It show that the petitioner is disabled to the tune of 80%. The petitioner was produced before Court. He could not even stand up and do his daily routine. Ext.C1 will go to show that he had large sacral bed sore and plastic surgery was done. Now he has weakness of both lower limbs, sensory deficit_ **M.A.C.A.No.844 OF 2012 & 73 OF 2015** **7** _from a point below the umbilicus, problems of indwelling continuous catheterization, bowel disturbance and low back ache. The disability is assessed by the District Medical Board and after observing the petitioner from the Court and on the basis of Ext.C1, I hold that Ext.C1 is a reliable document regarding the disability of the petitioner. So the compensation for disability is fixed at Rs.4,89,600/- (Rs.3000 x 12 x 80 x 17/100)._ _17. The injury has made the petitioner completely bed ridden. There is no doubt that the injury will affect the quality of his life. He needs the help of a bystander through out his life to attend his all daily needs. The life of the petitioner hereafter cannot be considered as a human life. The petitioner will need the help of a bystander. Considering all these aspects there is reduction in the quality of his life and the compensation for reduction in the quality of the life of the petitioner is fixed at Rs.5,00,000/- Thus the petitioner is entitled to a total compensation of Rs.13,02,600/- rounded as Rs.13,03,000/- (Rupees Thirteen lakhs and three thousand only). “_ 9. It was with reference to the above facts, that the Tribunal awarded amounts under various heads, the same is extracted below in the form of a table: **M.A.C.A.No.844 OF 2012 & 73 OF 2015** **8** |**_Head_**|**_Amount awardeed_**<br>**_(Rs.)_**| |---|---| |Loss of earning|18000| |Medical and miscellaneous expenses|2,05,000| |Bystander expense|10000| |Transportation expenses|25000| |Extra nourishment|5000| |Pain and suffering|50000| |Compensation for continuing permanent<br>disability|4,89,600| |Loss/reduction in earning capacity|5,00,000| |TOTAL|**13,02,600/-**<br>**(Rounded as**<br>**Rs.13,03,000/-)**| The first and foremost contention raised by the learned Sr.Counsel for the Insurance Company is that there is a clear finding by the Tribunal that the petitioner was a 'gratuitous passenger' and the Policy issued did not cover the said risk. Having rendered a finding as above, it was never proper for the Tribunal to have directed the Insurance Company to satisfy the **9** ## **M.A.C.A.No.844 OF 2012 & 73 OF 2015** liability, though with liberty to have it recovered from the insured. This Court finds it difficult to accept the said version for various reasons. 10. The term 'Ambulance' is not defined in the Motor Vehicles Act. But it does not fit into the slot of 'Goods Carriage', which terms has been defined under Section 2(14) of the Motor Vehicles Act, 1988, extracted below: _“(14) “goods carriage” means any motor vehicle constructed or adapted for use solely for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods.”_ In the case of 'Ambulance', it is intended to carry patients/injured to the hospital and back, besides carrying 'dead body' and as such, it can never be treated as a “goods carriage”. Even if the patient/dead body is taken to destination, it may be necessary for the party, who was accompanying the patient/dead body to come back along with the infrastructure carried in the Ambulance, to be returned to the service provider. That apart, **10** ## **M.A.C.A.No.844 OF 2012 & 73 OF 2015** the Central Government had issued a Notification bearing No.G.O.451(E)dated 19.06.1992, whereby 'Ambulance' was held as a 'Transport vehicle', as defined under Section 2(47) of the Motor Vehicles Act. 11. The liability of the Insurance Company to satisfy the claim in respect of a person who was travelling in the Ambulance had come up for consideration before this Court, way back in the year 2015. As per the decision in **United India Insurance Co. Ltd. vs. Deputy Director** [ **2016(1)KHC 40(DB** )], the claim was held as sustainable. Interference was made in the said case, only with regard to the maximum liability, with reference to the actual number of 'seating capacity'. Reckoning the number of claims having higher values, as awarded by the Tribunal, which was directed to be distributed among all eligible persons concerned, in the manner as declared by the Apex Court in **National Insurance Co. Ltd. vs. Anjana Shyam** [ **(2007)7 SCC 445].** Exactly similar issue had come up for consideration again before this Court, particularly as to whether a person who **11** ## **M.A.C.A.No.844 OF 2012 & 73 OF 2015** was travelling in the Ambulance for taking the patient to the hospital and suffering injuries in the course of the said transit is liable to be compensated. After referring to the relevant provisions of law and also the Government notification issued in this regard, a clear finding was rendered as per the decision in _**Shareena v. Anugraha Hospitals Pvt. Ltd**_ . **(2017(1) KLT 478)** that the Insurance Company cannot be exonerated and that the liability has to be satisfied by the Insurance Company, treating the passenger in the Ambulance as a 'third party' coming within the provisions of Section 147 of the Motor Vehicles Act. This Court finds that the said decision is squarely applicable to the case in hand and as such, the contention of the Insurance Company that there could not have been any direction to satisfy the due amount, reserving the right of recovery is not liable to be intercepted. Appeal fails on this count. 12. The next question mooted by the Insurance Company is that, after awarding compensation for disability to an extent of Rs.4,89,600/-, no further amount (Rs.5 lakhs) could be awarded **12** ## **M.A.C.A.No.844 OF 2012 & 73 OF 2015** towards loss of earning capacity, by virtue of the decision rendered by a Full Bench of this Court in _**Oriental Insurance Co.Ltd. vs. V. Hariprasad**_ **[2005(4) KLT 977].** There cannot be any dispute with regard to the principle laid down by the Full Bench. But the question is, whether any interference is to be made in this case, so as to scale down the compensation awarded by the Tribunal. In other words, such a course would be possible, only if a proper re-working of the compensation is effected and **this Court finds that an excess amount has been ordered by the Tribunal beyond the acceptable norms** . 13. The materials produced before this Court, particularly, the documents produced along with I.A.2226/13 preferred by the claimant show the plight of the injured/claimant, who is bedridden, with 80% disability certified by the Medical Board and accepted by the Tribunal. It is true that he was caused to be examined before the Tribunal as P.W.1. But the observations made by the Tribunal in Paragraphs 16 and 17 ( extracted above) **M.A.C.A.No.844 OF 2012 & 73 OF 2015** **13** are very much relevant, which can only lead to the inference that the victim is living as vegetable and nothing else. It is also to be noted that a person with 80% disability, as in the instant case, cannot earn any income with the remaining 20% potential. In view of the proven facts and circumstances, we find it appropriate that the occupational disability ought to have been worked out by reckoning ' **100%',** instead of 80%, though Ext.C1 certificate is only to an extent of 80%. 14. The next point to be considered is with regard to the monthly income reckoned by the Tribunal. The Tribunal was pleased to reckon only a sum of Rs.3000/- as the notional monthly income, though the claim was for Rs.6000/-. It is true that no documentary evidence has been produced by the claimant. But the fact remains that he was caused to be examined as PW.1, who deposed in terms of the averments. Even otherwise, at the time of the accident, he was an ablebodied youth of 28 years. The accident was in the year 2007 and as such, the multiplicand could have been fixed either by taking **14** ## **M.A.C.A.No.844 OF 2012 & 73 OF 2015** Rs.6000/- based on the economic situations prevailing on that day. The calculation may be correct, even if Rs.4000/- is taken as the notional monthly income and 50% is added towards future prospects, though it was not a case of permanent employment. 15. This Court is of the view, that calculation has to be effected taking the multiplicand as Rs.72000/- (per annum) and with 100% disability, of course, with the appropriate multiplier of '17'. Then, the compensation towards permanent disability comes to Rs.12,24,000/- (6000 x 12 x 17 x 100/100). The total amount awarded by the Tribunal towards compensation for permanent disability and loss of earning capacity is Rs.9,89,600/-. Still, there is a deficit to an extent of Rs.2,34,400/-. But, since we have reckoned 100% disability for working out the compensation, the amount of Rs.18,000/awarded by the Tribunal towards loss of earning has necessarily to be deducted . It is ordered accordingly. As such, the deficit/balance compensation payable comes to **Rs.2,16,400** /-, which is awarded as enhanced compensation towards permanent **15** ## **M.A.C.A.No.844 OF 2012 & 73 OF 2015** disability. 16. No amount has been awarded by the Tribunal towards loss of amenities and enjoyment in life. We find it appropriate to award a sum of **Rs.50,000** /- under this head. Similarly, no amount has been awarded towards loss of cloth and articles. We find it appropriate to award a sum of **Rs.1000/-** under this head as well. Thus, the total balance compensation payable comes to **Rs.2,67,400/-** (Rupees two lakhs sixty seven thousand and four hundred only), which requires to be satisfied with interest at the rate of 9% per annum from the date of petition till realisation. 17. By virtue of the finding rendered by the Tribunal and right of recovery reserved in favour of the Insurance Company, we permit the Insurance Company to have the due amount recovered from the first respondent after satisfying the liability towards the claimant. It is made clear that the increased rate of interest (i.e. 9%) will be applicable only in respect of the enhanced compensation and the interest originally awarded by **M.A.C.A.No.844 OF 2012 & 73 OF 2015** **16** the Tribunal at the rate of 7.5% will stand as it is. Appeal filed by the Insurance Company stands dismissed and appeal filed by the Claimant stands allowed to the above extent. **P.R. RAMACHANDRA MENON, JUDGE** **A.M. BABU, JUDGE** lk