Unnikrishnan C. v. Viswambharan P.K., Vijayan, and The Oriental Insurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE A.M.BABU TUESDAY, THE 11TH DAY OF APRIL 2017/21ST CHAITHRA, 1939 MACA.No. 1789 of 2011 -------------------------OPMV 725/2003 of M.A.C.T., THALASSERY DATED 06-02-2010 ## APPELLANT/PETITIONER ------------------------------------ UNNIKRISHNAN.C. S/O NARAYANAN, CHATHOTH HOUSE, NEDIYANGA PO, SREEKANDAPURAM, KANNUR ## BY ADV. SRI.RANJIT BABU ## RESPONDENTS/RESPONDENTS ---------------------------------------------- 1. VISWAMBHARAN P.K., S/O KUTTAN, PUTHENVEEDU HOUSE, MURUKKUM VYAL, KARINILAM P.O, MUNDAKKAYAM-686513 (Owner of jeep bearing registration No.KL 07 D/7349) 2. VIJAYAN, S/O KUNHAMBU, POLAYIL HOUSE, PANNIYOOR PO, KANNUR- 67 0142 (Driver of jeep bearing registration No.KL 07 D/7349) 3. THE BRANCH MANAGER, THE ORIENTAL INSURANCE CO. Ld., DIVISIONAL OFFICE, T.H.TOWERS, MARKET ROAD, MOOVATTUPUZHA-686661 (Insurer of jeep bearing registration No.KL 07 D/7349) ## R3 BY ADV. SRI.M.JACOB MURICKAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 11-04-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **P.R.RAMACHANDRA MENON & A.M.BABU, JJ** - - - - - - - - - - - - - - - - - - - - M.A.C.A. 1789 of 2011 - - - - - - - - - - - - - - - - Dated : 11[th] April, 2017 - - - - - - - - - - - - - - - - - - - - - - - - ## **JUDGMENT** ## Ramachandra Menon, J. - 1.The grievance projected by the appellant/claimant is two fold. Firstly, the compensation awarded by the Tribunal in respect of the injury sustained by the appellant/deceased in a road traffic accident is quite inadequate and secondly, the Insurance Company has been exonerated from the liability merely for the reason that the vehicle was being driven by the driver without a valid driving licence. - 2.Heard the learned counsel for the appellant as well as the learned counsel appearing for the Insurance Company. - 3.The sequence of events narrated in the appeal is that, when the appellant was proceeding along the road on 6.1.2002, he was knocked down by a jeep **MACA.1789/2011** 2 bearing registration No.KL-7D-7349 owned, insured and driven by the respondents 1 to 3 respectively causing serious injuries. Immediately the appellant was lifted to the A.K.G.Memorial Cooperative Hospital, Kannur from where he was referred to the Manipal hospital for better treatment. Altogether he was hospitalized for 22 days and after discharge, the claim petition was filed before the Tribunal seeking compensation to an appropriate extent. 4.The claim was contested by the respondent/Insurance Company mainly on the quantum and negligence. It was also pointed out that the jeep was being driven without any valid driving licence and there was violation of statutory/policy conditions by virtue of which no liability could have been mulcted upon respondent/Insurance Company. - 5.The evidence adduced before the Tribunal consists of Exts.A1 to A6 produced from the part of the claimant and Ext.B1 policy and Ext.B2 copy of the **MACA.1789/2011** 3 Charge sheet produced by the respondent/Insurance Company. Based on the materials on record, the Tribunal held that the accident was solely because of the negligence on the part of the driver of the jeep. - 6.The injuries sustained by the claimant, as recorded by the Tribunal in paragraph 9 of the Award, are in the following terms. “Petitioner sustained comminuted fracture on right femur. Ext.A4 is the treatment certificate issued from Kasturba Hospital, Manipal. The major injuries noted in Ext.A4 is fracture shaft of right femur and 5 cm sutured wound over middle 1/3[rd] of right thigh.” 7.The amounts awarded by the Tribunal, as dealt with in paragraph 10, are extracted below : |1|Bystander's expense|2200| |---|---|---| |2|Medical expenses|46000| |3|Pain and sufferings|18000| |4|Transport to hospital|10000| |5|Extra nourishment and review treatment|5000| |6|Loss of earnings for 3 months (@ Rs.3000/- per<br>month)|9000| ||Total|90200| **MACA.1789/2011** 4 The total compensation of Rs.90,200/- has been ordered to be satisfied with interest at the rate of 7.5% per annum from the date of petition, till realization. 8.The appellant/claimant was stated as a General worker. The Tribunal has reckoned Rs.3000/- as notional monthly income, which appears to be reasonable, with reference to the date of accident occurred in January, 2002. However, only three months' 'loss of earning' has been given by the Tribunal, which appears to be inadequate, as the injuries sustained by the appellant were quite serious, involving fracture on femur. We find it appropriate to reckon a period of 'six months' and as such, the compensation for 'loss of earning' comes to Rs.18,000/- (3000 x 6). After deducting the sum of Rs.9000/- awarded by the Tribunal, the balance compensation payable under this head comes to Rs.9000/-. It is awarded accordingly. The Tribunal has awarded an amount of Rs.18000/towards 'pain and suffering'. Considering the **MACA.1789/2011** 5 gravity of the injuries and the ordeal undergone during the period of hospitalization and even thereafter, we find it appropriate to award a further sum of Rs.7000/- under this head. The Tribunal has awarded no amount towards 'loss of amenities and enjoyment'. It is true that no medical certificate was produced proving the 'permanent disability' and compensation has been awarded under this head. But the injury sustained would have very much adversely affected the enjoyment and amenities in life, at least for a reasonable period. Hence, we find it appropriate to award a sum of Rs.20,000/- towards 'loss of amenities and enjoyment in life'. Thus, the total balance compensation payable comes to Rs.36,000/(Thirty six thousand) (9000 + 7000 + 20,000), which requires to be satisfied with interest at the rate of 9% per annum from the date of the claim petition, except the period of delay of 357 days which was condoned as per the order dated 20.12.2011, making it clear that the claimant will not be entitled to get interest, if he comes out successful in the appeal. **MACA.1789/2011** 6 9.The next question is with regard to the verdict passed by the Tribunal exonerating the Insurance Company from the liability. Specific pleadings were raised by the Insurer, that the vehicle was being driven without valid driving licence and that there was violation of statutory policy conditions. It was sought to be substantiated by filing I.A.6284 of 2007, to cause production of driving licence, which was allowed on 8.1.2008. Thereafter, the matter was published in the 'Kerala Kaumudi' daily as well. But still, there was no response from the part of the respondents concerned. It was in the said circumstances, that adverse inference was drawn by the Tribunal, holding that there was no valid driving licence at the relevant time. After arriving at such finding, the Tribunal has virtually exonerated the Insurance Company from satisfying the claim. Reliance is sought to be placed on Sardari v. Sushil Kumar (2008 (3) KLT SN 69). It does not appear to be correct in so far as the law has been declared in crystal clear terms by the Apex Court **MACA.1789/2011** 7 in the decision rendered in National Insurance Company Limited v. Swaran Singh [2004 (1) KLT 781 (SC)]. The Apex Court has held that where the Insurer succeeds in contesting the claim petition on the ground that there is violation of the policy conditions, they will have to pay the compensation due to the claimant and then recover it from the owner concerned. Reliance is sought to be placed by the appellant on the decision of the Apex Court reported in New India Assurance Company Ltd. v. Kusum and Others (2009 (8) SCC 377) as well. 10.In the above circumstances, we hold that the Tribunal was not at all right in exonerating the Insurer; in view of the law declared by the Apex Court. The Award passed by the Tribunal to the said extent is set aside and we make it clear that the entire amount awarded by the Tribunal will have to be satisfied by the Insurer. Same is the position with regard to the additional amount of compensation awarded by this Court in this appeal. The due amount shall be deposited as early as **MACA.1789/2011** 8 possible, at any rate, within 'one month' from the date of receipt of a copy of this judgment and the appellant will be at liberty to have the amounts withdrawn. On effecting the deposit as above, it will be open for the Insurance company to have the said amount recovered from the respondent 1 and 2 by way of appropriate proceedings in accordance with law. Appeal stands allowed to the above extent. No cost. **Sd/-** ## **P.R.RAMACHANDRA MENON Judge** **Sd/-** ## **A.M.BABU Judge** Mrcs/20.3 //True copy// P.S to Judge