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2013 DIGILAW 471 (KER)

G. Balachandran v. J Madusoodanan Pillai

2013-06-11

THOMAS P.JOSEPH

body2013
JUDGMENT Thomas P. Joseph, J. 1. This appeal is at the instance of the claimant who suffered injuries in an accident involving a motor cycle on 18.03.2006. It is alleged that while the appellant was walking along the side of the road, he was hit by the motor cycle which belonged to the first respondent, driven by the second respondent and was insured with the third respondent. 2. The respondents 1 and 2 remained ex parte in the Tribunal. The third respondent contended that the accident was due to the negligence of the appellant and that the second respondent was not having a valid license to ride a motor cycle at the relevant time. The Tribunal found that there was contributory negligence on the part of the appellant to the extent of 20%, assessed compensation payable at 80% of Rs.50,700/- with 7.5% interest and directed the first respondent, owner to pay the said amount, exonerating the third respondent from liability for the reason that the second respondent had no valid license at the relevant time. Hence the appeal. 3. The learned counsel for the appellant has contended that finding of the Tribunal concerning contributory negligence is not correct. It is further contended that compensation awarded is low. It is also contended that at any rate, the Tribunal was not correct in exonerating the third respondent from the liability to pay compensation to the appellant. 4. The learned counsel for the third respondent while supporting the award contended that the third respondent cannot be made liable in view of the decision in National Insurance Company Limited v. Vidhyadhar Mahariwala and Ors. (2008) 12 SCC 701 . 5. So far as the finding regarding contributory negligence is concerned, it is seen from paragraph 7 of the award that the Tribunal has made reference to Ext.A2, copy of the scene mahazar. Ext.A2 revealed that the accident occurred 1.12 meters east of the western tar end, the tar portion having width of 10 meters. From the above, the Tribunal has found that contention of the appellant that he was walking along the western road margin is not correct. 6. From the above it follows that the appellant has no acceptable explanation as to how he happened to be at a spot 1.12 meters east of the western tar end. From the above, the Tribunal has found that contention of the appellant that he was walking along the western road margin is not correct. 6. From the above it follows that the appellant has no acceptable explanation as to how he happened to be at a spot 1.12 meters east of the western tar end. That indicated negligence on the part of the appellant as well which having regard to the circumstances fixed at 20%. I do not find reason to interfere with that finding of the Tribunal. 7. The Tribunal found the total amount of compensation payable to the appellant as Rs.50,700/- and, held that the appellant is entitled to recover 80% of the same with interest @7.5% per annum. 8. Ext.A5 is the copy of wound certificate issued from the Medical College Hospital, Thiruvananthapuram. It reveales that the appellant suffered type I compound fracture of the left radius. He underwent IP treatment from 08.03.2006 till 11.03.2006. He had to undergo medical consultation even thereafter. 9. The appellant was aged 48 years at the relevant time, stated to be engaged as a driver. Though he claimed that his monthly income is Rs.4,000/- the Tribunal has, in the absence of other evidence fixed the monthly income at Rs.2,000/-. I do not find reason to interfere. 10. It is revealed from paragraph 8 of the award that the Tribunal has allowed loss of earnings for three months. Having regard to the nature of the injury the appellant has suffered and the period of treatment he had to undergo, it is quite likely that he was not able to work for a period of four months which brings compensation payable for loss of earnings Rs.8,000/-. Less Rs.6,000/- already awarded, the additional compensation payable to the appellant on that account comes to Rs.2,000/-. 11. Though it is contended that compensation awarded for pain and suffering is low, I find that Rs.15,000/- was awarded on that count which is sufficient. 12. It is contended by the learned counsel for the respondents 1 and 3 that the Tribunal was not right in awarding compensation for disability in the absence of any evidence. 13. It is seen from paragraph 8 of the award that though appellant had not produced any certificate of disability the Tribunal, after considering injuries suffered by the appellant held that there is disability to the tune of 8%. 13. It is seen from paragraph 8 of the award that though appellant had not produced any certificate of disability the Tribunal, after considering injuries suffered by the appellant held that there is disability to the tune of 8%. I am aware that some sort of arbitrariness is involved in the matter. But as it is a case of assessment of general damage, that is inescapable. 14. It is seen that the Tribunal has not awarded any compensation for loss of amenities of life. That is a separate, allowable head. Compensation ought to have been allowed for loss of enjoyment of life also. Having regard to the nature of injuries suffered and age of the appellant and the period of treatment he has to undergo, a sum of Rs.8,000/- is awarded as compensation for loss of enjoyment of amenities of life. Thus, additional compensation payable to the appellant comes to Rs.10,000/. 15. In the light of my confirmation of the finding that the appellant is guilty of contributory negligence, appellant is entitled to get 80% of the total amount of Rs.60,681/- with interest as awarded by the Tribunal. 16. What remains is whether the third respondent should be made liable to pay compensation with right to recover the same from the first respondent. It is in this connection that the learned counsel for the third respondent has placed reliance on the decision in National Insurance Company Limited v. Vidhyadhar Mahariwala and Ors. (supra). 17. In that case, the insurance company challenged the award against it and the Supreme Court allowed the appeal exonerating the insurance company from liability for the reason that the driver of the insured vehicle was not having a license as on the date of the accident. 18. The Tribunal has placed reliance on the decision in National Insurance Company v. Parvathneni,2009 (3) KLT 995 to exonerate the third respondent. The said decision did not say that the insurer cannot be made liable as against the third parties even when there is a proved violation of the policy condition but, only doubted the decisions in that line and referred the matter to a larger Bench. In other words, National Insurance Company v. Parvathneni (supra) is no authority for the proposition that when it is proved that there is violation of the policy conditions, the insurer is not to be held liable as against the third parties. 19. In other words, National Insurance Company v. Parvathneni (supra) is no authority for the proposition that when it is proved that there is violation of the policy conditions, the insurer is not to be held liable as against the third parties. 19. On the other hand, so far as the larger Bench decides otherwise the decision referred in National Insurance Company v. Parvathneni (supra) are to be followed. I must also notice that in Oriental Insurance Company v. Nanjappan and Ors., 2005 SCC (cri) 148), the Supreme Court held that in such situation the insurer could be liable to pay the amount to third party while allowing it to recover the same from the insured. Therefore, the decision in National Insurance Company Limited v. Vidhyadhar Mahariwala and Ors. (supra) did not take any position contra to the above. Hence the Tribunal was not right as the position of law now stands in absolving the third respondent from liability to pay compensation to the appellant. Of course, in the light of the finding of the Tribunal that the second respondent was not having a valid driving license at the relevant time it is open to the third respondent to recover the amount from the first respondent/insured. Resultantly this appeal is allowed in part as under: (i) In modification of the award dated 25.11.2009 in O.P(M.V).No.1134 of 2006 of the M.A.C.T, Kollam, appellant is allowed to recover 80% of Rs.60,681/- (Rupees Sixty Thousand Six Hundred and Eighty One Only) with interest @7.5% per annum from the date of application till its recovery from the respondents 1 to 3. (ii) The third respondent, insurer of the vehicle is directed to deposit the said amount in the Tribunal within two (2) months from this day. (iii) On such deposit, it is open to the third respondent to recover the said amount from the first respondent with interest @7.5% per annum.