United India Insurance Co. Ltd. v. Reeja, Moncy, P.K. Subaida

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM & THE HONOURABLE MRS. JUSTICE SHIRCY V.** **WEDNESDAY, THE 8TH DAY OF FEBRUARY 2017/19TH MAGHA, 1938** **MACA.No. 1839 of 2014 () -------------------------** **AGAINST THE AWARD DATED 16.05.2014 IN OP(MV)NO.300/2008 OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, MANJERI** **APPELLANT(S)/3RD RESPONDENT IN THE O.P.:** **---------------------------------------** **UNITED INDIA INSURANCE COMPANY LIMITED PERINTHALMANNA, REP.BY THE ASST.MANAGER, UNITED INDIA INSURANCE CO.LTD., REGIONAL OFFICE, ERNAKULAM, SARANYA, HOSPITAL ROAD, KOCHI-11.** **BY ADV. SRI.A.R.GEORGE** **RESPONDENT(S)/CLAIMANT & RESPONDENTS 1 & 2 IN THE O.P.:** **-------------------------------------------------------** **1. REEJA** - **D/O.JOSEPH, VETTUKULANGARA HOUSE, THACHANKODE, CHUNGATHARA, NILAMBUR TALUK, (PRESENT ADDRESS: REEJA W/O.SUNIL BONSTON, THACHARATHODI HOUSE, MANALODY, NILAMBUR-678 329.** **2. MONCY** - **S/O.VARGHESE, KODUMTHARA HOUSE, NILAMBUR RS POST,** - **NILAMBUR TALUK – 679 330.** **3. P.K.SUBAIDA W/O.KHADAR, PATHAYAKADAVAN HOUSE, NADUVATH POST, KATTUMUNDA, WANDOOR – 679 328.** **R1-R3 BY ADVS SRI.P.SAMSUDIN** **SRI.K.C.ANTONY MATHEW R1 BY ADV. SRI.K.VIDYASAGAR** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08-02-2017, ALONG WITH CO. 185/2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **SKV** ## **C.K.ABDUL REHIM** **&** ## **SHIRCY V., JJ** ======================== M.A.C.A No.1839 OF 2014 & Cross objection No.185 of 2015 ========================= Dated this the 8[th] day of February, 2017 ## JUDGMENT ## C.K.Abdul Rehim, J. The 3[rd] respondent insurance company before the Motor Accidents Claims Tribunal, Manjeri in O.P.(M.V.) No.300/2008 is the appellant herein. The cross objection is filed by the claimant/petitioner before the Tribunal. The appeal is filed challenging the award to the extent it held that the appellant insurance company is liable to pay the compensation. In the Cross objection the claimant is seeking enhancement of the amount awarded under different heads. 2. The accident occurred on 23.06.2007 when a Bus bearing registration No.KL-10Q-33 hit against an Ambulance in which the claimant was travelling on accompanying the dead body of her father. Evidence adduced on behalf of the claimant includes, Ext.A1 M.A.C.A.No.1839 of 2014 & 2 Cross Objection No.185 of 2015 copy of the FIR and Ext.A7 copy of the charge sheet relating to the police case registered with respect to the accident. From the police records it is revealed that the Driver of the Bus, the 1[st] respondent before the Tribunal, was charge sheeted for offence punishable under Sections 279,377 and 338 of the Indian Penal Code. Accepting those documents as primafacie evidence, the Tribunal found that the accident occurred due to the negligence of the 1[st] respondent. Accordingly, it was found that the 2[nd] respondent before the Tribunal, who is the owner of the Bus is vicariously liable. The Tribunal held that the appellant insurance company is liable to pay the compensation awarded, based on the fact that vehicle in question was insured with them. Contention of the appellant in this case is that Ext.B1 policy, which was issued with respect to the vehicle during the relevant time, is a policy of 'goods carrying commercial vehicle'. But at the time of the accident the vehicle was used as a 'Stage Carriage Passenger Vehicle.” Therefore, it is contended that the policy is void on the ground that it was obtained by nondisclosure of material facts or on a misrepresentation of the facts which was false, with respect to the material particulars regarding nature of the vehicle. Hence, it is contended that the appellant M.A.C.A.No.1839 of 2014 & 3 Cross Objection No.185 of 2015 insurance company is entitled to deny the liability based on provisions contained in Sections 149(2)(b) of the Motor Vehicles Act, 1988. 3. In this regard, it is to be noticed that the appellant insurance company had no case that they have not issued policy with respect to the vehicle in question. In the written statement filed by them before the Tribunal it is specifically admitted they have insured the vehicle KL-10Q-33 involved in the accident, at the time of the accident. Further contention taken is that the vehicle in question was insured as “goods carrying commercial vehicle.” At the time of the accident the vehicle was used as 'stage carriage-passenger vehicle' and therefore there is violation of the policy condition issued by the insurance company. It is pertinent to note that the appellant has not raised any contention before the Tribunal seeking reliance on the provisions contained under Section 149(2)(b). On the other hand, specific plea was that there occurred violation of the policy conditions with respect to the insurance policy provided to the vehicle in question. The Tribunal has not adverted to such a contention and no issue has been raised on the above said aspect. 4. From the police records produced in evidence, it is clear M.A.C.A.No.1839 of 2014 & 4 Cross Objection No.185 of 2015 that the vehicle in question which is involved in the accident is a Stage Carriage Bus holding valid registration and permit. There is no dispute for the appellant that the insurance policy was issued with respect to any other vehicle. There is also no dispute with respect to the fact that the policy in question was issued in favour of the registered owner of the vehicle. Question to be considered is as to whether the policy is void on the ground that it was obtained by nondisclosure or misrepresentation of any material particulars. Ext.B1 is the certificate of policy issued in favour of the registered owner with respect to vehicle No.KL-10Q-33. It contains details regarding schedule of premium. The Engine Number or Chassis Number is not mentioned therein. The make of the vehicle is noted as TATA LP 1109. Type of body is mentioned as 'closed'. There is already an endorsement to the effect that there exists a hypothication agreement in favour of TATA Motors Ltd., Branch Calicut. But at the top right hand corner of the policy certificate it is mentioned as, “goods carrying commercial vehicle (close) package policy.” Evidently, the policy might have been issued on verification of the Registration Certificate of the vehicle and also on noting the hypothication agreement. There is nothing produced before the M.A.C.A.No.1839 of 2014 & 5 Cross Objection No.185 of 2015 Tribunal to establish that the insured had furnished any false information regarding any material particulars with respect to nature of the vehicle or that she had suppressed any such material facts. Hence, the contention which is raised at this stage, seeking reliance on Section 149(2)(b) cannot be sustained. 5. Learned counsel appearing for the 3[rd] respondent in the appeal, who is the owner of the vehicle, had raised a contention that, the insurance company having been accepted the premium is bound to satisfy all third party claims in respect of the vehicle mentioned in the policy. They cannot take a contention that there was suppression or misrepresentation of any of the material facts with respect to the nature of the vehicle. In support of the above contention he cited the decision of the Division Bench of this Court in **Unnikrishnan K.A. v.** **Vijayakumar K.S @ Biju and others [2016 (3) KHC 83 DB]** . On the facts of the decision cited above, it is a case where the new owner of vehicle took policy in the name of the former owner, despite transfer of the vehicle. This Court held that, it appears that the insurer thought it is not necessary to inspect the vehicle or to verify the R.C. before issuance of the policy. But the insurance company, having accepted the premium to satisfy the third party liability in respect of M.A.C.A.No.1839 of 2014 & 6 Cross Objection No.185 of 2015 the vehicle mentioned in the policy, it is only proper to fix the consequence of the lapse on the part of the insurer in having issued a policy without verifying the factual particulars with reference to the RC. We are of the view that the above principle is applicable in the case at hand. The appellant having issued the policy with respect to the vehicle after verifying the RC particulars cannot be allowed to be turn around to contend that the policy was issued with respect to the vehicle of a different category. In such a case, it cannot be accepted that the policy was issued on the basis of any suppression of material particulars or any misrepresentation with respect to any such particulars. Hence the contention in this regard is hereby negatived. 6. The next question to be considered is as to whether there was any violation of the policy conditions. As already observed, the policy was issued in favour of a vehicle bearing registration No.Kl 10Q 33, which is a Stage Carriage Bus, going by the particulars in the Registration Certificate and going through the police records in the case registered with respect to the accident. Therefore the contention of the appellant that the vehicle in question was used for a different purpose other than for which it was authorized under the Motor Vehicle's Act, cannot be accepted. Merely because the policy M.A.C.A.No.1839 of 2014 & 7 Cross Objection No.185 of 2015 is titled as 'goods carrying commercial vehicle policy', it cannot be accepted that the insured has used the vehicle for any purposes other than which was not authorized. Therefore, we are not inclined to accept the contention that the insurance company need to be exonerated from the liability under Section 149 of the Motor Vehicles Act. This is especially because of the fact that, the mandatory requirement of having a policy covered 3[rd] party risk as contemplated under Section 146 stands complied with and hence the Driver or Owner of the vehicle cannot be held liable for plying the vehicle without having any valid policy covering third party risk. 7. The learned counsel for the appellant pointed out that, in another claim petition filed with respect to the very same accident, the Tribunal had exonerated the appellant from liability for payment of compensation, finding that there is a violation of the condition of the policy. He had produced certified copy of the Award in O.P.No.502/2008 and 635/2008 of the same Tribunal for our perusal. We are of the opinion that those awards cannot have any binding force with respect to the claim decided through the impugned award, nor it need to be considered by this Court while adjudicating the appeal. The Tribunal had decided the matter based on the evidence M.A.C.A.No.1839 of 2014 & 8 Cross Objection No.185 of 2015 available as well as the legal aspects concerned with the issues. 8. The Cross Objector, who is the claimant before the Tribunal, had raised contention that the amounts awarded under different heads are not adequate and insufficient. The claimant was a young lady at the age of 20 years at the time of the accident. She sustained injuries such as, fracture ascetabulam left, fracture public rami left, fracture of medial malleolous with lumbosacral strain. She was initially treated at the Medical College Hospital, at Mangalore and thereafter she was shifted to Taluk Hospital, Nilambur, from where she was again referred to the Medical College Hospital, Kozhikode. There is evidence to the effect that the impatient treatment continued for 20 days. The injury sustained to her had resulted in causing permanent disability, the extent of which was assessed by the Medical Board attached to the General Hospital Mangalore as 6%. Learned counsel for the Cross Objector contended that, the claimant was employed as a Nurse. But the Tribunal had adopted only a notional income of Rs.4,000/- per month. On a perusal of the impugned award, we are inclined to note that no evidence was produced from the side of the claimant to prove her occupation or income. Therefore, we do not find any ground M.A.C.A.No.1839 of 2014 & 9 Cross Objection No.185 of 2015 warranting interference with respect to the notional income fixed, for the purpose of computing compensation for permanent disability. It is further contended that amounts awarded under the head of pain and suffering and loss of enjoyment in life are on the lower side and are too insufficient. We notice that, towards compensation for pain and suffering a sum of Rs.15,000/- only was awarded. So also towards loss of amenities, the Tribunal had awarded only a sum of Rs.5,000/-. We are inclined to enhance the compensation under these heads to Rs.25,000/- each, which will entitle the cross objector/claimant for an enhancement of Rs.30,000/-. The amount of Rs.2,500/- awarded by the Tribunal 'Bystander's expenses' is on the lower side. We are inclined to enhance the sum to Rs.5,000/-, which will entitle the appellant for a further enhancement of Rs.2,500/-. 9. It is contented that the Tribunal had failed to consider anything towards the future prospects, while fixing the multiplier, for the purpose of calculating compensation for permanent disability. Learned counsel had placed reliance on the decision on the decision of Hon'ble Supreme Court in **Rajesh v Rajbir Singh [2013 (3) KLT 89(SC)]** in this regard. 10. Per contra, learned Standing counsel appearing for the M.A.C.A.No.1839 of 2014 & 10 Cross Objection No.185 of 2015 appellant contended that, in a case where there is no proof regarding employment and regular income, no amount towards future prospects can be added. It is contended that the decision cited above, does not settle any precedent that in all cases where there is no proof regarding the income, there should be an addition made towards future prospects. However, considering the fact that injured was only at the age of 20 years, there is every possibility that she might have earned more in her life. Therefore considering the probable increase in her earnings, especially considering the inflation rates prevailing, we are inclined to add 30% of the notional income fixed towards future prospects. Therefore the original compensation for permanent disability need to be re-worked to Rs.67,392(4000+30%x12x18x6%). This will entitle the claimant for an enhancement of Rs.15,552/-. We do not find any ground to interfere with the amounts of compensation awarded under any other heads. Thus the cross objector/claimant is entitled for a total enhancement of Rs.48,052/-. The said amount will carry interest at the rate of 9% per annum from the date of the claim petition till realization. Appellant insurance company is directed to make payment of the amount, less the amount if any already deposited, M.A.C.A.No.1839 of 2014 & 11 Cross Objection No.185 of 2015 within a period of two months from today. Needless to observe that the cross objector/claimant will be entitled to approach the Tribunal seeking withdrawal of the amount on such deposit; and the Tribunal shall pass appropriate orders considering the question of permitting withdrawal. Accordingly, the above appeal stand dismissed and the cross objection stands allowed in part to the extent as mentioned above. Sd/- **C.K.ABDUL REHIM, JUDGE** Sd/- **SHIRCY V., JUDGE** SKV