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2018 DIGILAW 798 (KER)

Hasna S. K. v. S. K. Haridas

2018-10-08

C.T.RAVIKUMAR, K.P.JYOTHINDRANATH

body2018
JUDGMENT : C.T. Ravikumar, J. The captioned appeals arise from the judgment and award passed by the Motor Accidents Claims Tribunal, Thalassery in O.P. (M.V)No.1247 of 2002. The former appeal has been preferred by the petitioner in the said claim petition seeking for enhancement of the compensation granted by the Tribunal and the latter appeal has been preferred by the insurance company of the offending vehicle viz., the 3rd respondent before the Tribunal, seeking to set aside the award to the extent the Tribunal had declined its prayer for exoneration from the liability to indemnify the insured owner of the said vehicle. True that, alternatively, as an abundant caution, the appellant-insurance company has also mounted challenge against the quantum of compensation on the ground of exorbitancy. A succinct narration of the facts and circumstances that led to the filing of the said claim petition is required for a proper disposal of this appeal. 2. The appellant in the former appeal, viz., the petitioner met with the accident in question, on 1.4.2002 at the age of nine years. On that day, about 2.30 p.m., she was playing in her courtyard situated at a place called Kadalayi. The offending vehicle belonged to her own father. The 2nd respondent was its driver engaged by her own father. The accident had occurred when the 2nd respondent suddenly started the van parked in the premises of the house and took it forward. Consequently, the appellant-petitioner got jammed in between the van and the veranda of the house. On sustaining grievous injuries, she was taken to Dhanalakshmi Hospital, Kannur and from there she was referred to Specialists Hospital, Ernakulam. She remained there as an inpatient till 21.5.2002. Earlier, on 2.4.2002, her right leg was amputated and then, on 4.4.2002, her left leg was also amputated. She was then studying in St.Theresis High School, Payyambalam in Standard II. It was in the said circumstances that taking up the contention that the accident had occurred solely due to the negligent driving of the 2nd respondent and therefore, the first respondent being the owner of the van is vicariously liable and since the vehicle in question was insured with the 3rd respondent, it is liable to indemnify the first respondent, the claim petition was filed through her mother. For the sake of convenience, the parties are referred to hereafter in this judgment in accordance with their rank and status before the Tribunal, unless otherwise specified. 3. The Tribunal, as per the impugned judgment, awarded a total compensation of Rs. 6,09,000/- along with interest at the rate of 7% from the date of petition till realisation. It is feeling aggrieved by and dissatisfied with the said judgment and award that the aforesaid appeals have been preferred by the petitioner and also by the 3rd respondent insurer, as mentioned hereinbefore. It is to be noted that at the risk of the petitioner, respondents 1 and 2 were already deleted from the array of parties in the former appeal. Though they are parties in the latter appeal, even after receipt of notice, they have not chosen to enter appearance and contest the matter. 4. We have heard the learned counsel for the petitioner/the appellant in the former appeal and the learned counsel appearing for the 3rd respondent, the insurance company/the appellant in the latter appeal. 5. After hearing the learned counsel on both sides, we are of the view that it is only appropriate to deal firstly with the contentions in M.A.C.A.No.2580 of 2008 filed by the insurance company, the 3rd respondent before the Tribunal. M.A.C.A.No.2580 of 2008 6. In this appeal, the main contention of the appellant/3rd respondent in the claim petition, is that in view of the indisputable position obtained that the accident involving the vehicle insured with it, had occurred not in a public place, but in the courtyard of the insured, the Tribunal ought not to have fastened it with the liability to indemnify the first respondent, the insured owner of the vehicle in question. The learned counsel further contended that the appellant insurance company is legally entitled to avoid the liability to indemnify the first respondent despite the existence of a valid insurance policy in respect of the offending vehicle as the accident involving the insured vehicle had occurred in a private place. In other words, it is contended that the statutory liability to indemnify in the light of insurance policy would arise in respect of a motor vehicle only if it had occurred in a 'public place' as defined under Section 2(34) of the Motor Vehicles Act (M.V.Act). In other words, it is contended that the statutory liability to indemnify in the light of insurance policy would arise in respect of a motor vehicle only if it had occurred in a 'public place' as defined under Section 2(34) of the Motor Vehicles Act (M.V.Act). To lend support to the said contention, the learned counsel for the 3rd respondent relied on the decisions of the Hon'ble Apex Court in United India Insurance Co. Ltd. v. Asha Rani (2001 KHC 623) and Rajan v. John ( 2009 (1) KLT 573 ). Resisting the said contentions, the learned counsel for the petitioner/appellant in the former appeal relied on the decision of a Division Bench of this Court in Parukutty v. Joseph ( 2015 (3) KLT 860 ) (in which one among us, Jyothindranath, J. is a party) and contended that going by the said decision, the meaning of the term 'public place' should not be given a literal interpretation as its literal interpretation would lead to anomalous results and would defeat the purpose. 7. We will firstly consider whether the place of accident in the case on hand would fall within the expression 'public place'. In the Motor Vehicles Act, 1988, the term 'public place' has been defined under section 2(34) as hereunder:- "public place" means a road, street, way or other place, whether a thoroughfare or not, to which the public have a right of access, and includes any place or stand at which passengers are picked up or set down by a stage carriage." 8. As noticed hereinbefore, the appellant-insurance company relied on the decisions in Asha Rani's case and Rajan's case to counter the contentions and claim of the petitioner. The learned counsel, relying on the said decisions, contended that a private place like a courtyard of a person, cannot be treated as a 'public place'. We will consider whether those decisions laid down a position that at no circumstances, a private place could be treated as 'public place' for the purpose of a claim petition arising out of a motor vehicle accident. In Asha Rani's case, the accident in question had occurred within the premises of a factory, by name 'Ganesh Cotton Factory', Malout. We will consider whether those decisions laid down a position that at no circumstances, a private place could be treated as 'public place' for the purpose of a claim petition arising out of a motor vehicle accident. In Asha Rani's case, the accident in question had occurred within the premises of a factory, by name 'Ganesh Cotton Factory', Malout. After referring to a catena of decisions, the Hon'ble Apex Court held:- Not only the weight of the judicial pronouncements is in favour of the finding that where the public enter with permission would become a public place for the purposes of the Motor Vehicles act, but this necessarily is the only conclusion. It has already been referred to above that once the public has access to a place with permission and they have entered the place, necessarily it would for the purposes of the said provision be a public place. There is no other conclusion that can be so arrived at because otherwise the Legislature would have not used the word "access" and instead would have not used the word "access" and instead would have used the word "private place" which has been so excluded. Therefore, in accordance with the Full Bench decision of the Bombay High Court in Pandurang Chimaji Agale's case (supra), the plea of the learned Counsel for the appellants must fail. As a necessary corrollary, it would follow that the appeal is without any merit. 9. In Rajan's case (supra), this Court held that 'public place' for the purpose of the Act has to be understood with reference to the place to which a vehicle has access and further that the question whether the public has access is of no consequence in understanding its meaning. It is also held therein that private premises of a house where goods vehicle is allowed entry is a 'public place' for the purpose of section 2(34) of the M.V. Act and therefore, liability is cast on the insurance company for accident occurring inside the private premises. It is further held therein thus:- Unless places like this where restricted entry is permitted to specific class of people for the purpose of handling goods in the form of loading and unloading of goods are treated as public places, the very purpose of insurance coverage under Section 147 of the Act will be defeated. It is further held therein thus:- Unless places like this where restricted entry is permitted to specific class of people for the purpose of handling goods in the form of loading and unloading of goods are treated as public places, the very purpose of insurance coverage under Section 147 of the Act will be defeated. It is clear from Section 147 that liability under the policy is not restricted for accident taking place on public roads. On the other hand, instead of using public roads, the coverage under the policy is for accidents taking place in public place which in our view, has a wide meaning covering private places of the kind referred above where restricted access is provided to limited class of public which can be even for specific purposes. We, therefore hold that the private premises of a house where goods vehicle is allowed entry, is a public place for the purpose of Section 2(34) of the Motor Vehicles Act which leads to liability for the Insurance Company subject to satisfying other conditions of the policy. (emphasis added) 10. This Court in Parukutty's case (supra), interpreted the term 'public place' and held that while considering the meaning of the term 'public place', a literal interpretation could not be given as a literal interpretation would lead to anomalous results and would defeat the purpose of the provision for granting compensation under the M.V.Act. Going by the decision, a purposive interpretation has to be adopted. In paragraph 27 thereof, this Court held:- As far as the provisions under the Motor Vehicles Act, 1988 are concerned, we are of the view that the Statute is framed with the anxiety and the purpose to compensate the victims of accidents which may occur in different circumstances. According to us, while considering the meaning of the term public place, a literal interpretation will lead to anomalous results and will defeat the purpose. A purposive interpretation thus will have to be adopted. It is a matter of common knowledge that in view of the increased spheres of activities in daily life of people, the necessity to hire goods vehicles either to transport household articles or the articles for use, merchandise, sand, cement etc., as well as agricultural crops arise of and on. The purpose of a goods vehicle will be to transport various items of goods. The purpose of a goods vehicle will be to transport various items of goods. If the words "public place" are interpreted in such a manner that the place where accident occurred should be one where the place itself is dedicated for the use of the public, it will go against the purpose of the provision. The definition clause under Section 2(34) does not go to that extent. In our view the decision of the Division Bench in United India Insurance Company Ltd v. Lakshmi ( 1997 (1) KLT 449 ), which was relied upon in United India Insurance Co. Ltd v. Pierce Leslie India Ltd. & Ors. ( 2000(1) KLT 792 ) clearly went to the extent of holding that a place will be a public place though it is a private property when it is shown that the public are in the habit of resorting to it and no one is prevented therefrom so resorting to it. In view of the decisions referred above, it has to be said that a 'public place' is one to which the public go where they have a right to do so or not. In fact, it has to be understood with reference to the place to which a vehicle has access and the question whether the public has access is of no consequences in understanding its meaning. Though the learned counsel for the appellant-insurance company relied on the decisions in Asha Rani's case and Rajan's case to contend that the place in question viz., the courtyard of the petitioner's father cannot be considered as a public place, in the light of what was held as extracted in the aforesaid decisions, we are of the view that it requires a further probe in view of the afore extracted recitals from those decisions, with reference to the factual position obtained in the case on hand based on the materials on record. In the light of the aforesaid position, we will consider the question whether the challenge of the insurance company against the award whereby it was fastened with the liability to indemnify the insured owner of the vehicle in question, raising the contention that the place of accident is a 'public place' could be sustained. In the light of the aforesaid position, we will consider the question whether the challenge of the insurance company against the award whereby it was fastened with the liability to indemnify the insured owner of the vehicle in question, raising the contention that the place of accident is a 'public place' could be sustained. The pleadings of the appellant insurance company, before the Tribunal and in this appeal would reveal that they did not dispute the fact that the van bearing Reg.No.KL-13/G-7564 had involved in the accident and that at the time of the accident, it was covered by a valid insurance policy viz., Ext.B1. Nonetheless the contention is that Ext.B1 policy would reveal that the appellant insurance company could be fastened with the liability only if the accident had arisen out of the use of the vehicle in a public place. Regarding the place of accident also, there is no dispute. Admittedly, the accident had occurred in the courtyard of the first respondent who is none other than the father of the petitioner. The precise case of the petitioner (the appellant in the former appeal) is that the vehicle bearing Reg.No.KL-13/G-7564 is hirable by the public and people used to hire it and further that it was used to park in the premises of the house where the accident had taken place. It is also the case of the petitioner that on that fateful day, the second respondent who was the driver of the said vehicle was attempting to take the vehicle from the premises to the nearby public road and at that point of time, the accident had occurred. In short, the contention is that the accident had occurred at a place where the vehicle used to be parked for operating for hire and when its driver was taking the same to the public road. 11. We have carefully gone through the pleadings in the memorandum of appeal. The aforesaid contentions relating the offending vehicle and that on that day, it was parked in the aforementioned premises were not specifically denied by the respondents and at any rate, a perusal of the grounds raised in this appeal would reveal that the third respondent insurer viz., the appellant in the latter appeal, had not disputed those aspects. It is in that context that the aforementioned decisions assume relevance. It is in that context that the aforementioned decisions assume relevance. Merely because to the place in question 'public' got no access as a matter of right, in the normal circumstances and further that it is a private place, cannot be reasons to hold that the accident in question had taken place not in a public place owing to the other attending circumstances, in view of the decisions referred above. The vehicle in question was available for hire to the public. PW1, the mother of the injured minor, deposed that the vehicle in question used to be parked in the premises of the house where the accident had taken place and further that people used to hire it. She had also deposed that the 2nd respondent driver started it to go for a trip. True that in the claim petition, it is not stated that the offending vehicle was used to be parked in the said premises. It is a fact that the first respondent in the written statement, has specifically stated that the vehicle in question used to be parked in the compound of the house. No contra evidence was adduced by the respondents including the appellant insurance company in the case on hand. When that be so, members of public could have access to the premises where the vehicle in question was parked. At any rate, the fact is that according to PW1 and also going by the pleadings of the first respondent in his written statement, the vehicle which is used to be parked in the premises of the house was actually parked in the premises of the said house and the accident had taken place when its driver started the vehicle. Going by the uncontroverted version of PW1, the second respondent was then taking the offending vehicle from the premises of the house for a trip. In the absence of any contra evidence, those aspects are to be taken only as established. Then the next question is whether the fact that the injured is the daughter of the owner of the vehicle by itself can be a reason in the circumstances to deny her compensation. The specific case of the petitioner is that the accident had occurred when the vehicle in question was attempted to be taken outside to go for hire. It was spoken to by PW1. The specific case of the petitioner is that the accident had occurred when the vehicle in question was attempted to be taken outside to go for hire. It was spoken to by PW1. In the circumstances, we do not find any reason to hold that the Tribunal had gone wrong in holding that the fact that the accident had occurred in the courtyard of the house by itself cannot be a reason to disentitle the petitioner to get the compensation. Shortly stated, in view of the circumstances obtained and the aforesaid nature of evidence, we do not find any reason to hold that the Tribunal had gone wrong in holding that the petitioner is entitled to get compensation for the injuries sustained in the accident involving aforesaid vehicle. 12. The next question to be considered is whether there is any substance in the contention of the appellant insurance company that the compensation granted is excessive and therefore, requires to be scaled down. We have already taken note of the fact that the petitioner was aged only 9 years at the time of the accident. She was then a girl studying in standard II. Admittedly, both her legs were amputated as a result of the injuries sustained in the accident. The Tribunal had accepted the certification of the extent of disability in Ext.X1, viz., 90% for calculating the quantum of compensation. Ext.X1 was issued by a duly constituted Medical Board at Pariyaram Medical College Hospital. Taking into account the aforesaid aspects and the quantum of compensation granted by the Tribunal under different heads, specifically mentioned in the impugned award, we do not find any reason to hold that the Tribunal had granted excess compensation to the petitioner. A mere glance at the schedule of compensation would reveal the same. As per the schedule, compensation was granted to the petitioner as hereunder:- 1. Medical expenses Rs.120950/- 2. Bystanders expenses Rs. 7500/- 3. Transport charges Rs. 4000/- 4. Extra nourishment Rs. 1000/- 5. Pain and suffering Rs. 25000/- 6. Loss of amenities and marriage prospects Rs. 25000/- 7. Future medical expense Rs. 10000/- 8. Attendants expense Rs. 10000/- 9. Loss of earning capacity due to disability. Rs. 405000/- Total Rs. 608450/- Rounded to Rs. 609000/- The appellant could not establish that exorbitant amount was granted under any particular head. The petitioner was aged only 9 years at the time of the accident. 25000/- 7. Future medical expense Rs. 10000/- 8. Attendants expense Rs. 10000/- 9. Loss of earning capacity due to disability. Rs. 405000/- Total Rs. 608450/- Rounded to Rs. 609000/- The appellant could not establish that exorbitant amount was granted under any particular head. The petitioner was aged only 9 years at the time of the accident. Her both legs were amputated as a result of the injuries sustained in the accident. In such circumstances, we do not think that the amount of Rs. 6,09,000/- granted as compensation is so exorbitant to invite appellate interference. In the circumstances, the contentions of the appellant insurance company that excess compensation was granted and therefore, it has to be scaled down is only to be repelled. We do so. M.A.C.A. No. 1429/2008 13. This appeal has been filed by the petitioner seeking enhancement of the quantum of compensation. The schedule of compensation extracted above would reveal the quantum of compensation granted to the petitioner under different heads. We are of the view that the amount of Rs. 4,05,000/- granted under the loss of earning capacity due to disability ought to have been 'compensation for permanent disability'. At any rate, taking into account the age of the petitioner, the nature of the injuries sustained and the fixation of various factors by the Tribunal for arriving at the compensation payable to the petitioner, we do not find any reason to hold that the petitioner was denied just compensation. According to us, considering the age of the appellant what was granted by the Tribunal cannot be said to be exorbitant and at the same time, it has to be taken as just compensation. In that view of the matter, we do not find any reason to interfere with the impugned award passed by the Tribunal in O.P.(MV) No.1247 of 2002, either at the instance of the third respondent or the petitioner. 14. In the result, both the appeals are dismissed. There will be no order as to costs.