High Court of KeralaDivision Bench2016-03-16The appeals are disposed of accordingly.

V.T. Padmini v. Shyju; Parappanangadi Motor Co-operative Society Ltd.; United India Insurance Co. Ltd.

Case / Petition Number:MACA No. 2559 of 2010

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. R. Ramachandra Menon
Anil K. Narendran
Judgment Date: 2016-03-16
Court Decision / Holding: The appeals are disposed of accordingly. The Tribunal’s awards are enhanced in respect of pain and suffering and loss of amenities for MACA Nos. 2559/2010 and 2569/2010, and enhanced for MACA No. 2571/2010 as well. The High Court adopts the pay-and-recover approach: the insurer is directed to satisfy the due amount within one month, with interest at 9% per annum from the date of petition to realization, and is free to recover the due amounts from the vehicle’s owner and driver in light of proven policy violations. The revised totals are: MACA 2559/2010 – ₹20,000; MACA 2569/2010 – ₹18,000; MACA 2571/2010 – ₹19,000, each with 9% interest from petition date. Bench directs payment within one month and disposal of appeals on these terms.
Final Disposition: The appeals are disposed of accordingly.

Parties to the Case

Appellants / Petitioners

V.T. Padmini, W/o Govindan, Pottammal 'Sreevalsam', Thenhipalam P.O., Malappuram

Respondents

Shyju, S/o Balakrishnan, Thekkumpparambath House, Kadalandinagaram P.O., 673314, Malappuram District
Secretary, Parappanangadi Motor Co-operative Society Ltd., Parappanangadi P.O., 676303, Malappuram District
United India Insurance Co. Ltd., Branch Office, U.P.Hill, Malappuram, Pin-676505

Legal Representation & Advocates

Counsels for Petitioners

• Sri K.P. Sudheer
• Sri V.C. Madhavankutty

Counsels for Respondents

• Sri M.A. George

Case Synopsis & Summary

This appeal challenges the Motor Accidents Claims Tribunal’s award in respect of injuries arising from a road traffic accident on 28 February 2007. The claimants—led by V.T. Padmini—sought enhanced compensation under multiple heads. The Tribunal had awarded modest sums for transport charges, damages to clothing, bystander expenses, nourishment, medical bills, pain and suffering, loss of earning, and loss of amenities. The appellants contend that, as most claimants were above 50 years of age and sustained fractures (including fractures of the left humerus, distal radius, and a comminuted intra-articular open fracture of the left tibial condyle in different MACA numbers), the quantum awarded is inadequate and does not reflect the gravity of their injuries and impact on life and earning capacity. The Insurance Company defends the Tribunal’s quantum and denies or minimizes liability, citing negligence of the involved vehicle. The High Court, while noting the insurer’s obligation to compensate the claimant and later recover from the wrongdoer in light of Swaran Singh and Poulose, modifies the awards and directs payment of enhanced sums. It holds that the insurer may recover the excess from the owner/driver and orders payment within one month with interest at 9% p.a. from the petition date until realization. The appeals are disposed of accordingly, with revised totals for each MACA case.

Legal Doctrines & Maxims

Pay-and-recover principle in motor accident claims (insurer to satisfy claimant and recover from wrong-doer) as per National Insurance Company v. Swaran Singh and Oriental Insurance Co. Ltd. v. Poulose

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants’ counsel submitted that all the injured were over 50 years of age and that the Tribunal’s compensation under various heads is inadequate, particularly since the injuries included fractures. They contended that the amounts awarded fail to reflect the gravity of the injuries, the long-term impact on earning capacity and quality of life, and the absence of adequate compensation for pain, suffering and loss of amenities. They urged enhancement to amounts commensurate with the injuries and claimed higher compensation for loss of earnings, medical treatment, and lifestyle impact in each MACA.

Contentions of Respondents

The respondent/Insurance Company contested the appeal mainly on quantum and negligence, challenging the Tribunal’s findings on liability and the quantum of compensation. They argued that the awards must reflect credible evidence on negligence and policy conditions, and they pressed for limited liability consistent with the evidence and applicable policy terms.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
National Insurance Company v. Swaran Singh	2004 (3) SCC 297	Positive	Court relies on the pay-and-recover principle whereby the insurer must first satisfy the claimant and may recover from the wrong-doer; cited as authoritative authority for insurer’s obligation in such circumstances.
Oriental Insurance Co. Ltd. v. Poulose	2015 (1) KLT 682 (L.B.)	Positive	Larger bench decision reinforcing the pay-and-recover approach; cited to justify insurer’s duty to satisfy claimant and to recover from the wrong-doer when policy violations exist.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **WEDNESDAY, THE 16TH DAY OF MARCH 2016/26TH PHALGUNA, 1937** ## **MACA.No. 2559 of 2010 ( )** **-------------------------AGAINST THE AWARD DATED 2.3.2010 IN OP(MV) NO.635/2008 ON THE FILE OF MOTOR ACCIDENTS CLAIMS TRIBUNAL, TIRUR** **-------------------------------** **APPELLANT(S)/PETITIONERS:** **------------------------------------------** **V.T.PADMINI, W/O.GOVINDAN, POTTAMMAL 'SREEVALSAM', THENHIPALAM P.O., MALAPPURAM.** **BY ADVS.SRI.K.P.SUDHEER SRI.V.C.MADHAVANKUTTY** **RESPONDENT(S)/RESPONDENTS:** **----------------------------------------------------** **1. SHYJU, S/O.BALAKRISHNAN, THEKKUMPARAMBATH HOUSE,, KADALUNDINAGARAM P.O., 673314,, MALAPPURAM DISTRICT.** **2. SECRETARY, PARAPPANANGADI MOTOR CO-OPERATIVE SOCIETY LTD.,, PARAPPANANGADI P.O., 676303,, MALAPPURAM DISTRICT.** **3. UNITED INDIA INSURANCE CO. LTD., BRANCH OFFICE, U.P.HILL, MALAPPURAM,, PIN-676505.** ## **BY ADV. SRI.M.A.GEORGE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 16-03-2016, ALONG WITH MACA NOS.2569/2010 & 2571/2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** R.AV **P.R.RAMACHANDRA MENON & ANIL K.NARENDRAN, JJ. -----------------------------------------------------------------M.A.C.A.Nos.2559, 2569 & 2571 of 2010 -----------------------------------------------------------------Dated this the 16[th] day of March, 2016** ## **JUDGMENT** ## Ramachandra Menon, J. The appeals are for enhancement of the compensation awarded by the Tribunal in respect of injuries, pursuant to the road traffic accident occurred on 28.2.2007. 2. The factual position revealed from the proceedings is that the claimants were walking along the Eastern margin of the road towards North at Anayarangadi and while so, when they reached the place of occurrence, they were knocked down by an autorickshaw bearing No.KL-10N-2969 driven, owned and insured by respondents 1 to 3 before the Tribunal causing serious injuries, which led to the claim petitions filed by them before the Tribunal seeking to compensate the loss. 3. The matter was contested mainly by the respondent/insurance company. The nature of contention raised by the respondent/Insurance Company was mainly on quantum and negligence. M.A.C.A.Nos.2559, 2569 & 2571/2010 2 4. The Tribunal based on the evidence on record awarded compensation under different heads, total of which comes to ₹71,520/- in M.A.C.A.No.2559/2010, ₹50,470/- in M.A.C.A.No.2569/2010 and ₹27,900/- in M.A.C.A.No.2571/2010. The learned counsel for the appellants submits that all the persons concerned who got injured were aged over 50 years and that the amounts of compensation awarded are much on the lower side, more so, since all the appellants have sustained injuries involving fracture. 5. Heard the learned counsel for the appellants and the learned counsel appearing for the respondent/insurance company. 6. The amounts awarded by the Tribunal under different heads are in the following terms:- ||M.A.C.A.No. **2559/10**|M.A.C.A.No. **2569/10**|M.A.C.A.No. **2571/10**| |---|---|---|---| |Transport charges including review|₹ 5000|₹ 4200|₹ 1000| | Damages to clothing & articles|300|300|300| |Bystander expenses|1500 (10 days)|3900 (26 days)|900 (6 days)| |Extra nourishment|1000|500|500| |Medical Bills|33713|17570|7199| |Pain & suffering|12000|10000|8000| | Loss of earning|15000 (5 months)|12000 (4 months)|9000 (3 months)| 3 M.A.C.A.Nos.2559, 2569 & 2571/2010 |Loss of amenities & enjoyment in life|3000|2000|1000| |---|---|---|---| ||71513|50470|27899| ||Rounded to 71520||Rounded to 27900| 7. The injuries sustained by the claimant in M.A.C.A.No.2559/2010 as noted in paragraph 8 of the Award are as follows:- “1. Fracture humerus left. 2. Fracture lower end of radius.” Considering the fact that the appellant/claimant had sustained two different fractures (fracture of left humerus and fracture to the lower end of radius) we find that the compensation awarded towards pain and suffering fixing the same as ₹12,000/- is inadequate we award a further sum of **₹8,000/-** under this head. Similarly, for loss of amenities and enjoyment in life we award a further sum of **₹12,000/-** . Thus, the total balance compensation payable in respect of the appellant in M.A.C.A.2559/2010 comes to **₹20,000/-** (Rupees Twenty thousand only) which requires to be satisfied with interest @9% per annum from the date of petition, till the date of realisation. M.A.C.A.Nos.2559, 2569 & 2571/2010 4 ## 8. The injuries sustained by the claimant in M.A.C.A.No.2569/2010 as noted in paragraph 10 of the Award are as follows:- 1. Medial and lateral collateral ligament injury left knee. 2. Anterior and posterior cruciate ligament injury left knee. 3. Medial and lateral meniscus injury left knee. 4. Contusion back. 5. Fracture maxilla left. 6. Injury left sclera. The appellant does not have a case that any permanent disability has been sustained, but still, we find that the amounts awarded by the Tribunal towards pain and suffering and loss of amenities and enjoyment in life require to be enhanced. Considering the nature and extent of injuries, we find it appropriate to award a further sum of **₹5,000/-** towards pain and suffering in this case. Only a sum of 2,000/- has been₹ awarded towards loss of amenities and enjoyment in life. We find it appropriate to re-fix the same as 15,000/-, thus resulting in a₹ balance compensation of **₹13,000/-** . Thus, the total balance compensation payable in respect of the appellant in M.A.C.A.2569/2010 comes to **₹18,000/-** (Rupees Eighteen thousand only) which requires to be satisfied with interest @9% per annum from the date of petition, till the date of realisation. M.A.C.A.Nos.2559, 2569 & 2571/2010 5 9. The injuries sustained by the claimant in M.A.C.A.No.2571/2010 as noted in paragraph 12 of the Award are as follows:- “Comminuted intra-articular open fracture left tibial condyle.” The Tribunal has awarded only a sum of Rs.8,000/- towards pain and suffering, which requires to be enhanced by providing additional compensation of ₹ **7,000/-** more. It is ordered accordingly. Only a sum of 1,000/- has been awarded towards₹ loss of amenities and enjoyment in life. We find it appropriate to award a further sum of ₹ **9,000/-** under this head. The injured, according to the Tribunal, required rest for a period of three months and the same has been compensated. We find it appropriate to award compensation for 4 months, taking note of the injuries sustained and it becomes 12,000/-, thus resulting in₹ a balance compensation of ₹ **3,000/-** more under this head. Thus, the total balance compensation payable in respect of the appellant in M.A.C.A.2571/2010 comes to **₹19,000/-** (Rupees Nineteen thousand only) which requires to be satisfied with interest @9% per annum from the date of petition, till the date of realisation. M.A.C.A.Nos.2559, 2569 & 2571/2010 6 10. The other grievance projected by the learned counsel for the appellants is that the Tribunal has exonerated the insurance company with reference to the contention that there was violation of the statutory/policy conditions, in so far as the vehicle was caused to be driven without a valid driving licence. The fact that the vehicle was caused to be driven without a valid driving licence and that there was violation of the statutory/policy conditions stand established and the finding in this regard has not been subjected to challenge by the owner or driver of the vehicle. But whether the insurance company could have been exonerated under such circumstance is the matter to be considered. As per the decision rendered by the Supreme Court as given in **National Insurance Company v. Swaran Singh (2004 (3) SCC 297)** and the verdict passed by the larger bench of this Court reported in **Oriental Insurance Co. Ltd. v. Poulose (2015 (1) KLT 682 (L.B.))** the course open for the insurer under such circumstance is to satisfy the liability of the victim towards the claimant and then to have it recovered from the wrong-doer. Following the said verdict, it is made clear that, it is for the insurance company to satisfy the due amount with M.A.C.A.Nos.2559, 2569 & 2571/2010 7 liberty to proceed against the owner and the driver of the vehicle concerned. The awards passed by the Tribunal to the said extent stand modified and the respondent/insurance company is directed to satisfy the due amounts as aforesaid to the appellants and the insurer is let free to proceed against the owner and driver of the vehicle concerned to have the said amounts recovered, in view of the proven violation. Since the policy is admitted and since the verdict passed by the Tribunal has been modified to the above extent, we direct the respondent insurance company to satisfy the due amount within one month. The appeals are disposed of accordingly. ## Sd/- ## **P.R.RAMACHANDRA MENON, JUDGE** Sd/- **ANIL K.NARENDRAN, JUDGE** skj True copy P.A to Judge