Thressiamma v. Joseph Francis, Shiju, National Insurance Co. Ltd. (MACA No. 1544 of 2010)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN & THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **WEDNESDAY, THE 6TH DAY OF NOVEMBER 2013/15TH KARTHIKA, 1935** ## **MACA.No. 1544 of 2010 ( )** **-------------------------OPMV.1421/2006 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, IRINJALAKUDA. ......** **APPELLANT/PETITIONER IN OP(MV).:** **-------------------------------------------------------** **THRESSIAMMA, W/O. ANTONY, VEMBIL HOUSE, MELADOOR DESOM, ALATHUR VILLAGE, MELADOOR P.O., MUKUNDAPURAM TALUK, THRISSUR DISTRICT.** **BY ADVS.SRI.P.V.BABY, SRI.A.N.SANTHOSH.** ## **RESPONDENTS/RESPONDENTS 1 TO 3 IN OP(MV).:** **---------------------------------------------------------------------------** **1. JOSEPH FRANCIS, S/O. FRANCIS, THOTTUNGAL HOUSE, VELUTHUR P.O., THRISSUR DISTRICT-680 016.** ## **2. SHIJU, S/O. VARGHESE,** ## **KANNAMPUZHA HOUSE, V.R. PURAM P.O., THRISSUR DISTRICT-680 020.** ## **3. NATIONAL INSURANCE CO. LTD., THRISSUR DISTRICT.** **R1 BY ADV. SRI.V.BINOY RAM. R2 BY ADVS. SRI.M.H.HANIL KUMAR, SRI.M.R.DHANIL. R3 BY ADV. SMT.SARAH SALVY.** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 06-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rs.** S.SIRI JAGAN & K.RAMAKRISHNAN, JJ. ================== M.A.C.A.No. 1544 of 2010 ================== Dated this the 6[th] day of November, 2013 J U D G M E N T ## K.Ramakrishnan, J.: The claimant in O.P.(M.V).No.1421/2006 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda, is the appellant herein. The appellant filed the application for compensation for the injuries and consequential disability sustained by her in a motor vehicle accident caused on account of the rash and negligent driving of two vehicles driven by respondents 2 and 5, owned by respondents 1 and 4 and insured with respondents 3 and 6 in the O.P (M.V). After considering the evidence on record, the Tribunal found that the accident occurred due to negligent driving of the vehicle by the 2[nd] respondent and awarded a total compensation of ` 30,900/- on various heads as follows: ||Head of claim|Amount<br>awarded<br>`|Amount<br>awarded<br>`|Amount<br>awarded<br>`| |---|---|---|---|---| |1|Medical expenses||9,500.00|| |2|Treatment as inpatient||400.00|| |3|Transportation expenses||1,000.00|| |4|Loss of income||3,000.00|| |5|Pain and suffering||10,000.00|| |6|Discomfort and loss of amenities|||7,000.00| ||Total||30,900.00|| m.a.c.a.1544/10 - : 2 :- Further, the Tribunal exonerated the 3[rd] respondent-insurance company from the payment of the amount as the vehicle had no permit at the time of accident. Dissatisfied with the finding exonerating the insurance company and also the quantum of compensation awarded, the appellant has filed this appeal before this Court.. 2. Heard the learned counsel for the appellant and the learned standing counsel for the insurance company. 3. The learned counsel for the appellant submitted that the appellant was aged 54 years and was a coolie by profession and getting ` 4,000/- per month at the time of accident. But the Tribunal has arbitrarily fixed the monthly income of the appellant as ` 1,500/-, which is very low. Further, the amounts awarded under various heads considering the nature of injuries sustained and the treatment undergone are also on the lower side. The learned counsel also argued that even assuming that there was no permit for the vehicle that can only amount to violation of policy condition and the Tribunal ought to have directed the insurance company to pay the amount and recover it from the owner and the total exoneration of the insurance company from liability is unsustainable in law. The decision m.a.c.a.1544/10 - : 3 :- relied on by the Tribunal, viz., **Thara v. Syamala** , 2009 (2) KLT 707, is not applicable to the facts of this case. Because, in that case, the Tribunal directed the insurance company to pay the amount and recover the same from the insured on the ground that there was violation of policy condition and the owner challenged the finding of the Tribunal and this Court has dismissed the appeal filed by the owner of the vehicle. There is no interference regarding the direction given to the insurance company to pay and recover under Section 149(4) of the Motor Vehicles Act in that case. So, the Tribunal was not justified in exonerating the insurance company from liability. 4. On the other hand, the learned counsel for the 3[rd] respondent-insurance company argued that the amount awarded by the Tribunal is just and proper. Further, since there is no permit, the vehicle is not expected to be put on road and it can be treated as user of the vehicle not provided for in the permit and as such, they are not liable to indemnify the insured and the Tribunal rightly exonerated the insurance company and no interference is called for regarding that finding at the hands of this Court. Further, the total amount awarded is just and proper as well and the appellant is not entitled to get any enhancement m.a.c.a.1544/10 - : 4 :- as well. 5. We have considered the rival contentions of both parties in detail. 6 As regards the liability of the insurance company is concerned, they have relied on the recitals in Ext.A2 charge sheet, in which, it was specifically mentioned that a petty case has been registered against the owner of the vehicle for driving the vehicle without permit. Though the 1[st] respondent had appeared through counsel and participated in the trial of the proceedings, he had not produced the permit before the court to show that at the time when the accident occurred, it was covered by a valid permit. So plying a vehicle without permit is a violation of policy condition and the insurance company can say that they are not liable to indemnify the insured. As rightly pointed out by the learned counsel for the appellant, in the decision relied on by the court below, the appeal was filed by the owner of the vehicle against the finding of the Tribunal that the insurance company has to pay the amount and recover the same from the insured and that was dismissed and the finding regarding the direction to pay and recover has not been interfered by this Court. Further, in the decision in **S.Iyyappan** m.a.c.a.1544/10 - : 5 :- **v. United India Insurance Co. Ltd.** , 2013 (3) KLJ 306, the Hon'ble Supreme Court has held that the insurance company can proceed against the insured for recovery of the amount in case there is any violation of policy condition and it has to be established by the insurance company. As far as third party is concerned, the right to recover the amount from the insurance company cannot be denied on that ground. In this case, there is no valid permit for the vehicle to ply at the time of the accident. It cannot be said that the insured was not aware of this fact and the insured is not expected to put the vehicle on road without valid permit. So, this will amount to wilful violation of condition of policy and in such cases, the insurance company is entitled to recover the amount so deposited by them to satisfy the award by virtue of issuance of policy in favour of the insured from the insured under Section 149(4) of the Act. So, under the circumstances, the Tribunal was not justified in fully exonerating the insurance company from liability to pay the amount to third party. The Tribunal ought to have directed the insurance company to pay the amount and recover the amount from the insured under Section 149(4) of the Motor Vehicles Act. So we set aside the finding of the Tribunal that the 3[rd] respondent m.a.c.a.1544/10 - : 6 :- insurance company is not liable to pay the amount and they are not liable to indemnify the insured and we direct the insurance company to pay the amount and recover the same from the insured, the 1[st] respondent, under Section 149(4) of the Act. 7. As regards the quantum of compensation is concerned, though the appellant had a case that she was a coolie and getting ` 4,000/- per month, she had not produced any document to prove that fact. But the accident occurred in the year 2006. Courts should not shut their eyes against realities. A coolie worker may be getting at least ` 3,000/- per month at that time. So, we are re-fixing the monthly income of the appellant as ` 3,000/-. The Tribunal has taken two months' loss of earning considering the nature of injuries sustained and awarded ` 3,000/- taking her monthly income as ` 1,500/-. Since we have re-fixed monthly income of the appellant as ` 3,000/-, the appellant will be entitled to get ` 6,000/- instead of ` 3,000/under the head, loss of earning during the period of treatment. 8. Though the learned counsel for the appellant submitted that the appellant is having disability on account of the injuries sustained, there is no evidence adduced on the side of the appellant to prove this fact. However, considering the m.a.c.a.1544/10 - : 7 :- nature of injuries sustained to her eye, the compensation awarded under the head, loss of amenities in life, appears to be on the lower side and we enhance the same to ` 10,000/- from ` 7,000/- awarded by the Tribunal. We do not find any reason to interfere with the amounts awarded by the Tribunal under the other heads as the amounts awarded by the Tribunal under the other heads are just and proper. So the appellant will be entitled to get an additional amount of ` 6,000/- over and above the compensation awarded by the Tribunal, which the 3[rd] respondent insurance company is liable to pay with 9% interest from the date of petition till date of payment. This amount also, the insurance company is entitled to recover from the 1[st] respondent. Two months' time is granted to the insurance company to deposit this amount as well. With the above modification of the impugned award of the Tribunal, the appeal is disposed of. Sd/- S.SIRI JAGAN, JUDGE sdk+ Sd/K.RAMAKRISHNAN, JUDGE ///True copy/// P.A. to Judge m.a.c.a.1544/10 - : 8 :-