Vinod Kumar V. v. Ranjith Kumar; Chandramohanan Pillai; The Manager, Oriental Insurance Co. Ltd.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` THURSDAY, THE 1[ST] DAY OF FEBRUARY 2024 / 12TH MAGHA, 1945 ``` ## **`M.A.C.A.NO.2028 OF 2011`** ## **`AGAINST AWARD DATED 10.02.2009 IN OP(MV)NO.1549/2003 OF THE MOTOR ACCIDENT CLAIMS TRIBUNAL, ATTINGAL`** ## **`APPELLANT/CLAIMANT:`** ``` VINOD KUMAR V. S/O. VISWANATHAN, S.R.BHAVAN, POOVANVILA, KOLIYAKODE P.O., TRIVANDRUM ``` ## **`BY ADV SRI.N.K.KARNIS`** ## **`RESPONDENTS/RESPONDENTS:`** - **`1 RANJITH KUMAR, S/O KRITHIVANAN, REJANI MANDIRAM, MANALIL PACHA, MANALIL P.O., ANCHAL, KOLLAM DIST, PIN 691 312.`** - **`2 CHANDRAMOHANAN PILLAI S/O. JANARDHANAN PILLAI, THAZHAMMEL, VATTAKKARIKATHU VEEDU, THAZHAMEL, ANCHAL, KOLLAM DISTRICT, PIN – 691 306.`** - **`3 THE MANAGER,`** ``` THE ORIENTAL INSURANCE CO.LTD., PUNALUR BRANCH, PIN- 691 305 ``` ``` BY ADV ADV B.KRISHNA MANI ADV K S SANTHI -SC R3, ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 01.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` M.A.C.A.NO.2028 OF 2011 ``` ``` 2 ``` ## **`JUDGMENT`** The appellant was the petitioner in O.P.(M.V.) No.1549/2003 on the files of the Motor Accident Claims Tribunal, Attingal. The said claim petition was submitted by him seeking compensation for the injuries sustained to him in a motor accident that occurred on 12.04.2001. 2. According to the appellant, the accident occurred when the autorickshaw in which the appellant was travelling was capsized due to the rash and negligent driving of the 2[nd] respondent. The 1[st] respondent was the owner of the said vehicle and it was insured with the 3[rd] respondent. According to the appellant he was a carpenter by profession with a monthly income of Rs.3,000/-. He was aged 30 years and according to him, he sustained very serious injuries and permanent disablement in the accident. The claim petition was submitted in such circumstances. 3. The 3[rd] respondent alone contested the matter. In the written statement filed by them they admitted that ``` M.A.C.A.NO.2028 OF 2011 ``` ``` 3 ``` they have issued an insurance policy for the vehicle concerned in the name of one Thomas. The negligence as well as quantum of compensation was also disputed by them. They also disputed the liability to indemnify the 1[st] and 2[nd] respondents as well. 4. The evidence consists of Exts.A1 to A6 from the side of the appellant and no evidence was adduced by the respondents. After the trial, the Tribunal came to the conclusion that the accident occurred due to the negligence on the part of the 2[nd] respondent. However, it was found that, as the appellant did not take any steps to implead the Thomas in whose name the policy claimed to have been issued by the 3[rd] respondent, the 3[rd] respondent was exonerated from the liability and thus the liability was imposed upon the 1[st] and second respondent. The quantum of compensation was fixed as Rs.58,450/- and the same was permitted to be recovered with interest @ 7.5% per annum from the date of petition till realisation. It was also ordered that the said amount was to be ``` M.A.C.A.NO.2028 OF 2011 ``` ``` 4 ``` deposited by the 1[st] respondent with interest at the rate of 7.5% per annum, within a period of 90 days from the date of the order failing which, the rate of interest shall be 9% per annum from the date of the judgment till realisation. This appeal is submitted in such circumstances by the appellant challenging the exoneration of the Insurance Company and also seeking enhancement of compensation. 5. Heard Sri.N.K. Karnis, learned counsel appearing for the appellant, Sri.B. Krishna Mani, learned counsel appearing for the 1[st] respondent and Smt.K.S. Santhi, learned counsel appearing for the 3[rd] respondent. 6. The first question to be considered is whether the exoneration of the 3rd respondent/insurer from the liability is proper or not. It is discernible from the records that the exoneration was only on the ground that, as on the date of the accident, the insurance policy stood issued in the name of one Thomas. However, apparently, no dispute has been raised as to the ownership of the 1st respondent over the vehicle concerned. The coverage of ``` M.A.C.A.NO.2028 OF 2011 ``` ``` 5 ``` the policy with respect to the vehicle was also not disputed. The 3rd respondent also did not raise any contention alleging violation of policy conditions at the instance of any of the respondents. Of course, it is true that the policy stood issued in the name of one Thomas and he was not impleaded in the party array. However, the crucial aspect to be noticed in this regard is that, in the absence of any challenge as to the ownership of the 1st respondent over the said vehicle, the said reason was not sufficient to exonerate the 3rd respondent/insurer from the liability. This is particularly because even if it is assumed that, the 1st respondent had transferred the said vehicle to the said Thomas, that cannot be a reason to exonerate the 3rd respondent insurer from the liability arising out of the policy. It is to be noted in this regard that, as per Section 157 of the Motor Vehicles Act, a deemed transfer of policy is contemplated when the motor vehicle is transferred to some other person. Therefore, the fact that the policy stood in the name of another person at the ``` M.A.C.A.NO.2028 OF 2011 ``` ``` 6 ``` time of the accident is not a matter of any significance as far as the liability towards the third party is concerned. Of course, the same can have an impact when the question of claim of the damages sustained by the registered owner arises. Here, the claim was from a third party, who is statutorily covered as per the terms and conditions of the policy by virtue of the operation of Section 147 of the Motor Vehicles Act. Therefore, under no circumstances the 3rd respondent insurer can escape from liability as far as the third-party claim is concerned. In such circumstances, I do not find any justification to uphold the finding of the Tribunal exonerating the Insurance Company and accordingly, it is set aside. Thus, it is held that the 3rd respondent is liable to pay the compensation. 7. The next aspect relates to the quantum of compensation. The appellant claimed that he was 30 years old at the time of the accident and was earning Rs.3,000/per month from his avocation as a carpenter. Considering the fact that the accident occurred in the year 2001, the ``` M.A.C.A.NO.2028 OF 2011 ``` ``` 7 ``` amount claimed by him appears to be reasonable. This is particularly because in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd** [(2011) 13 SCC 236] the Honourable Supreme Court was pleased to take the monthly income of a worker as Rs.4,500/- for an accident that occurred in the year 2004. Therefore, the monthly income of Rs.3,000/- is accepted. The percentage of disability suffered by the appellant claimed to be 7%, which is already accepted by the Tribunal. Thus, while reassessing the compensation with the monthly income of Rs.3,000/-, the amount of compensation for disability would come to Rs.42,840/- (3,000 x 12 x 17 x 7/100). The amount already awarded by the Tribunal is Rs.28,560/-, which would result in an additional compensation of Rs.14,280/-. 8. Consequent to the revision of monthly income, the appellant would be entitled to some additional amount under the head of loss of earnings as well. The Tribunal has granted compensation under this head for a period of ``` M.A.C.A.NO.2028 OF 2011 ``` ## **`8`** five months. Therefore, a further sum of Rs.5,000/- is awarded under the said head. Similarly, the amount awarded by the Tribunal towards pain and suffering was Rs.8000/-. It is discernible from the records that the appellant suffered fracture to both bones of the left forearm. He underwent inpatient treatment for a period of 10 days. In such circumstances, I deem it appropriate to grant a further sum of Rs.5,000/- under the said head. Similarly, the amount awarded by the Tribunal towards loss of amenities was Rs.7,140/-. Considering the nature of the injuries, the physical disability and the nature of employment in which he was engaged, that is, carpenter, I deem it appropriate to grant a further sum of Rs.5,000/under the said head. Thus, the total additional compensation is determined as Rs.29,280/- (14,280 + 5,000 + 5,000 + 5,000). Thus, the total compensation receivable by the appellant is reassessed as Rs.87,730/(29,280 + 58,450). 9. In the result, this appeal is allowed. The award ``` M.A.C.A.NO.2028 OF 2011 ``` ``` 9 ``` dated 10.02.2009 passed by the Motor Accident Claims Tribunal, Attingal in O.P.(M.V.) No.1549/2003, to the extent it exonerated the 3[rd] respondent/insurer from the liability is set aside. It held that the 3[rd] respondent is liable to pay the compensation. The quantum of compensation is reassessed as Rs.87,730/- (Rupees eighty seven thousand seven hundred thirty only) and the 3rd respondent is directed to deposit the said amount with interest @ 7.5% per annum from the date of petition till realisation. However, it is clarified that, as the delay of 755 days was condoned by this Court subject to the condition that, in case any enhancement is granted, the appellant shall not be entitled to interest on the additional compensation for the said period, the 3rd respondent shall be at liberty to exclude the said period while computing the interest on the additional compensation. It is further clarified that the claimant shall furnish the details of the PAN card, Aadhar Card and bank details to enable the Insurance Company to make the deposit as ``` 10 ``` ## **`M.A.C.A.NO.2028 OF 2011`** ordered above, within period of two months from the date of receipt of a copy of this judgment. In case, he fails to furnish the said details, it shall be open for the insurance company to deposit the same amount before the Tribunal. ``` Sd/- ZIYAD RAHMAN A.A. JUDGE ``` scs