V.J. Thankachan @ John v. Dy. Director of Transport, State Health Transport Organization, Department of Health Services, Thiruvananthapuram and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN FRIDAY, THE 8TH DAY OF APRIL 2016/19TH CHAITHRA, 1938 **MACA.No. 410 of 2007 ( ) -------------------------** ( AGAINST THE AWARD IN OPMV 1133/2001 of M.A.C.T., THALASSERY DATED 01-07-2006) APPELLANT/PETITIONER: ------------------------- V.J.THANKACHAN @ JOHN, S/O. JOSEPH, AGED 37 YEARS, VATTANKIYIL HOUSE, CHERIYA AREEKKAMALA, CHATHURAMPUZHA P.O., ERUVESSI AMSOM DESOM, TALIPARAMBA TALUK, KANNUR DISTRICT. BY ADVS. SRI.V.A.SATHEESH SRI.V.T.MADHAVANUNNI SRI.V.JOHN SEBASTIAN RALPH RESPONDENT(S)/RESPONDENTS: -------------------------- 1. DY.DIRECTOR OF TRANSPORT, STATE HEALTH TRANSPORT ORGANIZATION,, DEPARTMENT OF HEALTH SERVICES,, THIRUVANANTHAPURAM. 2. C.K.SASEENDRAN, S/O.GOPALAN, ACADEMY OF MEDICAL SCIENCES,, PARIYARAM P.O., TALIPARAMBA TALUK, KANNUR DISTRICT. 3. THE BRANCH MANAGER, DIRECT AGENT'S BRANCH, ORIENTAL INSURANCE CO.LTD.,, UNITY COMPLEX, 2ND FLOOR, S.N.PARK ROAD,, KANNUR-1. R1 BY ADV. GOVERNMENT PLEADER MR. R. PADMARAJ R3 BY ADV. SRI.N.S.NAJEEB THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08-04-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **P.R. RAMACHANDRA MENON & ANIL K. NARENDRAN, JJ.** .............................................................................. **M.A.C.A.No.410 OF 2007** ......................................................................... **Dated this the 8[th] April, 2016** ## **JUDGMENT** ## **P.R. Ramachandra Menon, J.** Claimant is the appellant before this Court. The grievance is as to the inadequacy of compensation awarded in respect of the injuries sustained in a road traffic accident occurred on 01.01.2001. 2. The sequence of events revealed from the pleadings is that the appellant was proceeding along the road, with another person and while so, a mini bus bearing No.KL.01/-9352, owned by the first respondent, driven by the second respondent and insured by the third respondent, knocked him down causing serious injuries including brain injury, leading to hospitalisation for about 52 days by way of different spells in different hospitals. Later, this was sought to be compensated by filing the claim petition. 3. The second respondent did not choose to contest the **2** ## **M.A.C.A.No.410 OF 2007** matter and hence was set ex parte. The first respondent, owner/State filed a written statement disputing negligence and contending that the vehicle was covered by a valid policy and further that negligence was on the part of the claimant himself, who was crossing the road abruptly. 4. The third respondent Insurance Company contended that there was violation of statutory/policy conditions in so far as the second respondent was not having valid driving licence on the date of the accident. The evidence adduced before the Tribunal consists of Exts.A1 to A16 produced from the part of the claimant; whereas the respondents produced copy of Ext.B1 policy and Ext.B2 driving licence particulars. The claimant himself was examined as P.W1. After assessing the materials on record, the Tribunal held that there was contributory negligence on the part of the claimant to an extent of 25% and accordingly negligence was apportioned in the ratio of 75% on the part of the second respondent and 25% on the part of the claimant. 5. Awarding amounts under different heads, the total compensation payable was fixed as Rs.2,19,055/- which was ## **M.A.C.A.No.410 OF 2007** ## **3** directed to be satisfied with interest at the rate of 7% from the date of petition. 6. The contention with reference to the absence of driving licence was negated by the Tribunal placing reliance on the decision of the Full Bench of this Court in _**Oriental Insurance Co. Ltd. vs. Paulose**_ (2004(1) KLT 8) to the effect that such a situation would not enable the said contention to be sustained. The award is sought to be enhanced by the claimants as mentioned above. 7. Heard the learned Counsel for the appellants, the learned Sr.Government Pleader appearing for the first respondent and the learned Counsel appearing for the Insurance Company. 8. The case projected before the Tribunal was that the claimant was a Mason and was earning a sum of Rs.200/- per day. Ext.A16 , his identity card issued by the Kerala Construction Workers Welfare Board Thiruvananthapuram as to the membership secured by the claimant in the aforesaid Board. This shows that the claimant was not a general worker but a skilled worker. By virtue of the evidence adduced by the **4** ## **M.A.C.A.No.410 OF 2007** claimant as P.W.1 and the documents produced, it has to be held that the case of the claimant that he was a mason is true and correct. Eventhough the accident was of the year 2001, the Tribunal reckoned only Rs.2000/-per month as the notional income, which is much on the lower side. Considering the economic conditions prevailing on the date of the accident and the nature of the skilled work, we find it appropriate to re-fix the same as Rs.4000/- p.m. 9. The injuries sustained by the claimant as discussed in paragraph '9' of the award are in the following terms: _“Multiple laceration over the left side of the head with drooping of right eyelid due to 3[rd] nerve palsy (paralysis) with sub-arechnoid haemorrhage and difuse brain injury.”_ 45% of 'whole body disability' has been certified by the Medical Board vide Ext.A3 and it has been accepted by the Tribunal. 10. The amounts awarded under different heads are in the following terms: **M.A.C.A.No.410 OF 2007** **5** |**Head**|**Amount**<br>**(Rs.)**| |---|---| |Loss of earning|12000| |Transportation expenses|8000| |Medical expenses|63424| |Bystanders expenses|7050| |Extra nourishment|3000| |Pain and suffering|15000| |Loss of earningcapacity|183600| |TOTAL;|292074<br>75% OF<br>**Rs.292074=**<br>**219055/-**| 11. After hearing both the sides, we find that the amounts payable require to be enhanced under some of the heads. By virtue of re-fixation of monthly income, the loss of earning capacity comes to Rs.345600/- (4000 x 12 x 16 x 45/100) ('16' being the proper multiplier and not '17'). After deducting the sum of Rs.183600/awarded by the Tribunal, the balance payable comes to **Rs.1,62,000/-.** Compensation awarded towards 'loss of earning for 'six' months also necessitates variation. There is a deficit of **Rs.12000/** - under this head, which is awarded accordingly. Because **6** ## **M.A.C.A.No.410 OF 2007** of different spells of hospitalisation, we find it appropriate to award a further sum of **Rs.2000/** - towards transportation and such other expenses. Towards pain and suffering, the Tribunal has awarded a sum of Rs.15000/-. We enhance the same by **Rs.5000/** - more. No amount has been awarded towards loss of amenities and enjoyment of life. We award a sum of **Rs.25000** under this head as well. Thus, the total balance compensation payable will come to Rs **.2,06,000/-** ## **(Rupees two lakhs and six thousand only)** 12. With regard to fixation of contributory negligence upon the claimant , this Court does not find any rhyme or reason in the course adopted by the Tribunal. The claimant was not riding or driving any vehicle and was admittedly a pedestrian. It was very much obligatory for the second respondent to have driven the vehicle taking sufficient care and caution in respect of the lives and limbs of the general public. We find that the whole negligence has to be fixed upon the shoulders of the second respondent and accordingly the award passed by the Tribunal fixing negligence to an extent of 25% upon the claimant stands set aside and negligence is re-fixed as 100% on the part of the second respondent. As such, the extent of compensation deducted by 25% as per the award dated 01.07.2006 **7** ## **M.A.C.A.No.410 OF 2007** also requires to be satisfied by the Insurance Company. 13. Another important aspect to be noted is that the respondent insurer had pleaded and established the factum of absence of driving licence on the date of the accident. In paragraph 11 of the award, the Tribunal has mentioned that the licence of the second respondent had expired on 09.08.1998; whereas the accident was on 01.01.2001. But the said contention as to the absence of valid driving licence on the date of the accident was given no effect, placing reliance on the verdict passed by a Full Bench of this Court in **2004 (1)KLT 8** and hence even no right of recovery was given in favour of the Insurance Company. It is true that the Insurance Company has not filed any appeal or cross objection. But the question is whether, while awarding additional compensation as above, also making the claimant eligible for the omitted compensation of 25% because of contributory negligence wrongly fixed by the Tribunal upon him, could this Court follow the verdict of the Full Bench in **2004 (1)KLT 8.** 14. As a matter of fact, the legal position has been made clear by a Larger Bench of this Court as per the decision reported in **2015 (1)KLT 682 (Babu vs. Jose)** , whereby the ruling rendered by the Full Bench in **2004(1)KLT 8** stands overruled. Explaining the **8** ## **M.A.C.A.No.410 OF 2007** mandate of section 14 of the Motor Vehicles Act, the Larger Bench has made it clear that, if the licence had already expired, but not sought to be renewed within 30 days from the date of expiry so as to have it renewed from the date of expiry, violation of statutory/policy condition is involved and under such circumstance, the Insurance Company will have to satisfy the due amount and can have the same recovered from the concerned party. This being the position, so as to give effect to the verdict passed by the Larger Bench, we cannot but hold that the amount awarded and to be satisfied to the claimant can be sought to be recovered by the Insurance Company from the first respondent/Govt. Department. It is also a matter of concern that, inspite of the fact that the second respondent is stated as an employee of the first respondent and that the licence had expired in the year 1998, it was never sought to be renewed and he was being permitted to drive the vehicle without licence, at least for three years till the accident occurred in 2001. We leave the matter there, with the declaration as aforesaid. 15. Appeal stands allowed. Since the policy is admitted, we direct the Insurance Company to satisfy the due amount to the appellant at the earliest, at any rate within one month from the date **9** ## **M.A.C.A.No.410 OF 2007** of receipt of a copy of the judgment. The insurer is set at liberty to recover the entire compensation from the first respondent, after satisfying the liability to the claimant. ## **P.R. RAMACHANDRA MENON, JUDGE** ## **ANIL K. NARENDRAN, JUDGE** The judgment dated 08.04.2016 in M.A.C.A.No.410/2007 is suo motu reviewed to the extent of awarding interest @ 9% per annum on the enhanced compensation, from the date of petition, till satisfaction as per order dated 09/09/2016 in I.A.No.2941/2016 in M.A.C.A 410/2007. Sd/- Registrar(Judicial). lk