V.T.Joseph v. Chacko K.M. and Jinto Chacko and The Manager, The Oriental Insurance Co. Ltd.

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **MONDAY, THE 2ND DAY OF JULY 2018 / 11TH ASHADHA, 1940** **MACA.No. 1295 of 2013** **AGAINST THE AWARD IN OP(MV)NO.1206/2009 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA ,DATED 31-01-2013.** **---------** **APPELLANT(S)/CLAIMANT IN O.P.(M.V.) -----------------------------------** **V.T.JOSEPH, AGED 54 YEARS, S/O. THOMAS, VATTAKUNNEL HOUSE, VILAKUMADAM, POOVARANY P.O., PAIKA, PALA, PIN-686577.** **BY ADVS.SRI.THOMAS M.JACOB SRI.AKHIL K.MADHAV SRI.T.R.JERRY SEBASTIAN** ## **RESPONDENT(S)/RESPONDENTS:** **--------------------------** ## **1. CHACKO K.M.,** **KOCHUPARAMBIL HOUSE, MUDIYOOR KARA, GANDHINAGAR P.O., KOTTAYAM, PIN-686008.** ## **2. JINTO CHACKO,** **KOCHUPARAMBIL HOUSE, MUDIYOOR KARA, GANDHINAGAR P.O., KOTTAYAM, PIN-686008.** ## **3. THE MANAGER,** **THE ORIENTAL INSURANCE CO. LTD., KOTTAYAM, MATTETHRA BUILDINGS, BAKER JUNCTION, KOTTAYAM, PIN-686001.** **R1 & R2 BY ADVS. SRI.SAJITH KUMAR V.** **SRI.P.K.ANTONY** **R3 BY ADVS. SRI.A.R.GEORGE SRI.GEORGE CHERIAN (THIRUVALLA)** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 02-07-2018,ALONG WITH MACA.NO.827/2015,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **TS** ## **04.8.2018** ## **P.D.RAJAN, J** **- - - - - - - - - - - - - - - - - - -** M.A.C.A Nos.1295 of 2013 & 827 of 2015 **- - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 02[nd] day of July, 2018 ## **JUDGMENT** These appeals are preferred against the award in O.P(MV) No.1206/2009 of the Motor Accidents Claims Tribunal, Pala. M.A.C.A No.1295/2013 was preferred by the injured and M.A.C.A No.827/2015 was preferred by the owner of the vehicle. 2. The claimant's case in the lower court was that on 12.01.2008 at 7.30 pm, the injured was riding a motor cycle and reached in front of Maruti Service Center, an autorickshaw KL-5/W-9887 driven in a rash and negligent manner hit against the motor cycle. As a result, he sustained serious injuries. Immediately, he was removed to hospital. The driver and owner did not contest the matter. The insurer admitted the insurance of the autorickshaw. The claimant was examined as PW1 and his documents were marked as Exts.A1 to A23. Respondents evidence consist of documentary evidence of Exts.B1 and B2. The learned Tribunal awarded Rs.5,14,644/-. Being aggrieved by that, the injured preferred M.A.C.A ## **M.A.C.A Nos.1295 of 2013 & 827 of 2015** **==> picture [19 x 10] intentionally omitted <==** ## No.1295/2013. 3. The learned counsel for the appellant in M.A.C.A No.827/2015 contended that the driver was holding valid driving licence on the date of the accident. There is no violation of policy condition and the insurer has to indemnify the owner. 4. The learned counsel appearing for the injured (appellant) in M.A.C.A No.1295/2013 contended that just amount was not awarded by the Tribunal. ## 5. Apex court in _**Raj Kumar v. Ajay Kumar [2011(1) KLT 620 (SC)]**_ held as follows: _“where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings, would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a_ **M.A.C.A Nos.1295 of 2013 & 827 of 2015** **-3-** _corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation. What requires to be assessed by the Tribunal is the effect of the permanent disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terms of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that percentage of loss of earning capacity as a result of the permanent disability, is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation.”_ 6. In injury cases the damages are to be assessed separately as pecuniary and special damages. The object is to compensate injury so far as money can compensate. When compensation is to be awarded for pain, suffering and loss of amenities in life, special ## **M.A.C.A Nos.1295 of 2013 & 827 of 2015** **-4-** circumstances of the claimant have to be taken into account. Amount of compensation for non-pecuniary loss is not easy to determine, but award must reflect that different circumstances have been taken into consideration. Hence, the multiplier method has to be followed to calculate pecuniary loss upon annual basis. In _**Yadava Kumar**_ v. _**D.M. National Insurance Co. Ltd. (2010 (8) SCALE 567)**_ Apex Court explained the principle in relation to the assessment of damages for personal injuries cases as follows: “ _We do not intend to review in detail state of authorities in relation to assessment of all damages for personal injury. Suffice it to say that the basis of assessment of all damages for personal injury is compensation. The whole idea is to put the claimant in the same position as he was insofar as money can. Perfect compensation is hardly possible but one has to keep in mind that the victim has done no wrong; he has suffered at the hands of the wrongdoer and the court must take care to give him full and fair compensation for that he had suffered._ _10. In some cases for personal injury, the claim could be in respect of lifetime's earning lost because, though he will live, he cannot earn his living. In others, the claim may be made for partial loss of earnings. Each case has to be considered in the light of its own facts and at the end, one must ask whether the sum awarded is a fair and reasonable sum. The conventional_ ## **M.A.C.A Nos.1295 of 2013 & 827 of 2015** **==> picture [19 x 10] intentionally omitted <==** _basis of assessing compensation in personal injury cases, and that is now recognised mode as to the proper measure of compensation-is taking an appropriate multiplier of an appropriate multiplicand.”_ 7. The learned counsel appearing for the appellant in M.A.C.A No.1295/2013 contended that the injured was a business man and was getting Rs.5,000/per month. The learned Tribunal took Rs.3,000/- per month. Moreover, as per Ext.A12 medical certificate, there was a disability of 22%, but the learned Tribunal reduced the disability to 18%. As per Ext.A8 birth certificate, he was aged 49 years and the multiplier is 13. In view of _**Syed Sadiq and others v. Divisional Manager, United India Insurance Company Ltd (2014 (2) SCC 735),**_ the income is taken as Rs.4,500/and disability is 22%. Therefore, the disability compensation is Rs.4,500x12x13x22/100=Rs.1,54,440/-. The learned Tribunal awarded Rs.83,160/-. The balance is Rs.71,280/-. As per Exts.A9, A10 and A11, he had undergone treatment for a period of thirty months. Ext.A9 is the treatment certificate issued on 28.11.2008, Ext.A10 ## **M.A.C.A Nos.1295 of 2013 & 827 of 2015** **==> picture [19 x 10] intentionally omitted <==** is the treatment certificate issued on 09.09.2010 and Ext.A11 is the discharge summary issued on 12.05.2010. Considering those aspects, the learned Tribunal granted loss of income for 24 months. Therefore, he is entitled to get loss of income Rs.1,08,000/- for 24 months at the rate of Rs.4,500/-. The learned Tribunal awarded Rs.84,000/-. The balance is Rs.24,000/-. Just amount was awarded towards other heads. Therefore, he is entitled to get enhanced compensation of Rs.95,280/- (Rupees Ninety Five Thousand Two Hundred and Eighty only) with 7% interest from the date of petition till realisation and proportionate cost. 8. The learned counsel appearing for the owner filed M.A.C.A No.827/2015 contending that the driver was holding licence, but he was not holding a badge. Apex court in _**Mukund Dewangan v. Oriental Insurance Company Ltd [2017(3) KLT 1000 (SC)]**_ held as follows: _“The newly incorporated expression 'transport vehicle' in S.10(2)(e) would include only the vehicles of the category_ ## **M.A.C.A Nos.1295 of 2013 & 827 of 2015** **==> picture [19 x 10] intentionally omitted <==** _as defined in S.2(16)-heavy goods vehicle, S.2(17)-heavy passenger motor vehicle, S.2(23)- medium goods vehicle and S.2(24) medium passenger motor vehicle, and would not include the 'light motor vehicle' which means transport vehicle also of the weight specified in S.2(21).”_ 9. In this case, the vehicle involved in the accident is an autorickshaw. The word 'Autorickshaw' is not defined in the Motor Vehicles Act, 1988. It comes within the definition of 2(25) and it is a motorcab. The motorcab is defined under 2(25) as “ _motor vehicle constructed or adapted to carry not more than six passengers excluding the driver for hire or reward”_ . It is a public service vehicle also. The public service vehicle is defined under 2(35) means _“any motor vehicle used or adapted to be used for the carriage of passengers for hire or reward, and includes a maxicab, a motorcab, contract carriage, and stage carriage._ The learned counsel appearing for the insurer company submitted that the autorickshaw is a transport vehicle and badge is necessary. When there is a violation of policy condition, the insurer has no liability. It is true that the autorickshaw ## **M.A.C.A Nos.1295 of 2013 & 827 of 2015** **-8-** is a light motor vehicle and also transport vehicle. The transport vehicle defined under Section 2(47) means _“ a public service vehicle, a goods carriage, an educational institution bus or a private service vehicle.”_ If that be the position, the decision laid down by the apex court in _**Mukund Dewangan**_ (supra) is applicable. It is a vehicle weighing less than 7500 kg. In the circumstance, the insurer cannot avoid liability and the direction to satisfy the award and reimburse the amount from R1 and R2 jointly and severely is hereby set aside. The insurer is directed to satisfy the award and enhanced compensation within 30 days from the date of receipt of a copy of this judgment, failing which it will carry 12% interest from the date of default. These appeals are disposed of, as above. Sd/- **P.D.RAJAN JUDGE** bng