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2021 DIGILAW 1110 (KER)

Sukumar S/o P. T. Krishnan v. John Jobin S/o John

2021-12-04

A.BADHARUDEEN

body2021
JUDGMENT : A. BADHARUDEEN, J. 1. M.A.C.A. No. 2031 of 2011 is an appeal filed by the original petitioner in O.P. (MV) No. 256/2009 on the file of the Motor Accidents Claims Tribunal, Ottapalam challenging award dated 11.07.2011 in the above case. 2. Whereas M.A.C.A. No. 718 of 2012 is an appeal at the instance of the 2nd respondent/owner of Tata Sumo bearing Reg. No. KL-07R-2617 in O.P. (MV) No. 256/2009. 2nd respondent impugns grant of recovery right by the Tribunal, as per award dated 11.07.2011 on the finding that the 2nd respondent violated policy conditions. 3. O.P. (MAC) No. 2613/2012 is also one at the instance of the 2nd respondent, the owner of the vehicle, challenging recovery right granted in connected O.P. (MV) No. 257/2009 by award dated 11.07.2011. 4. Facts in M.A.C.A. No. 2031/2011 and M.A.C.A. No. 718/2012: The petitioners, met with an accident on 19.10.2008 at about 2 p.m. while travelling in a motorcycle bearing Reg. No. KL-9B-1990 from Ottapalam side to Shoranur side. According to them, they reached near Kanniyampuram Theruu road, a Tata Sumo model car bearing Reg. No. KL-07R-2617, driven by the 1st respondent, rashly and negligently came from the opposite direction hit against the motorcycle and they were thrown off from the motorcycle. In consequence thereof they sustained severe injuries. Soon after the accident, the petitioners were taken to Valluvanad Hospital, Ottapalam for first aid and from there referred to Aswini Hospital, Thrissur and admitted and treated there as inpatients for few days. Petitioners alleged that the accident occurred solely due to the negligence of the 1st respondent, the driver of Tata Sumo. 2nd and 3rd respondents are owner and insurer of the vehicle Tata Sumo respectively. 5. Even though the petitioner in O.P. (MV) No. 256/2009, the appellant in M.A.C.A. No. 2031/2011, claimed Rs. 3 lakh as compensation, the Tribunal granted Rs. 1,07,140/-. Whereas the petitioner in O.P. (MV) No. 257/2009 even though claimed Rs. 1 lakh, the Tribunal granted Rs. 7,000/- on a consolidated basis. 6. The 2nd respondent filed written statement denying negligence attributed against the 1st respondent driver of the Tata Sumo. The specific contention raised to the effect that the 2nd respondent was not the owner of the vehicle at the time of accident since he sold the vehicle as early as on 25.06.2008. 7. 7,000/- on a consolidated basis. 6. The 2nd respondent filed written statement denying negligence attributed against the 1st respondent driver of the Tata Sumo. The specific contention raised to the effect that the 2nd respondent was not the owner of the vehicle at the time of accident since he sold the vehicle as early as on 25.06.2008. 7. The 3rd respondent filed written statement and denied negligence against the 1st respondent and attributed the same against the rider of the motorcycle, the petitioner in O.P. (M).No. 257/2009. Issuance of valid policy to KL07 R 2617 was admitted. But liability was disputed on the grounds that the driver did not possess a valid driving licence and also the vehicle was altered and the same was not duly intimated to the insurer. 8. The Tribunal jointly tried O.P. (MV) No. 256/2009 and O.P. (MV) No. 257/2009 and by common award dated 11.07.2011, Rs. 1,07,140/- was granted as compensation along with 7% interest in O.P. (MV) No. 256/2009. In O.P. (MV) No. 257/2009, the Tribunal granted Rs. 7,000/- as compensation. 9. While canvassing increase in compensation in excess of what has been granted by the Tribunal, the learned counsel for the appellant in M.A.C.A. No. 2031 of 2012 would submit that the Tribunal fixed the monthly income at Rs. 3,500/- for the purpose of granting loss of earnings as well as disability income though it was specifically contended in the petition that the petitioner was earning Rs. 30,000/- per month doing the business of leather goods manufacturing and sale. Though the learned counsel for the appellant was asked to justify the contention based on evidence, he could not exactly point out any evidence to convince the income at Rs. 30,000/- though he had given reliance to Ext.A19 licence dated 6.5.2009 issued from Vaniyamkulam Grama panchayat for production of chappals. 10. The learned counsel for the 2nd respondent as well as the 3rd respondent - the owner and insurer of the vehicle respectively, opposed fixation of monthly income in excess of Rs. 3,500/-. 11. Faced with the situation, the learned counsel for the appellant canvassed fixation of monthly income at Rs. 6,500/- following the decision reported in Ramachandrappa vs. Manager, Royal Sundaram Alliance, (2011) 13 SCC 236 : (2014) 2 SCC 735 : AIR 2014 SC 1052 , wherein Rs. 4,500/- was fixed as the monthly income of a coolie during 2004. 3,500/-. 11. Faced with the situation, the learned counsel for the appellant canvassed fixation of monthly income at Rs. 6,500/- following the decision reported in Ramachandrappa vs. Manager, Royal Sundaram Alliance, (2011) 13 SCC 236 : (2014) 2 SCC 735 : AIR 2014 SC 1052 , wherein Rs. 4,500/- was fixed as the monthly income of a coolie during 2004. Following the ratio in Ramachandrappa's case (supra) the monthly income of the injured in this case is fixed at Rs. 6,500/-. 12. According to the learned counsel for the appellant in M.A.C.A. No. 2031/2012, though 6% disability was assessed as per Ext.A20 certificate issued by PW-1, the Tribunal reduced the same to 2% without justification. The learned counsel for the appellant pointed out the injuries sustained by the petitioner and also the evidence given by PW-2 to justify issuance of 6% disability in this case. Opposing this contention, the learned counsel for the insurer as well as the owner submitted that only minor injuries were sustained to the appellant and therefore the Tribunal is justified in fixing 2% as disability. Therefore, no further amount is liable to be granted. 13. In order to allay the rival contentions, I have gone through Ext.A20 disability certificate dated 21.01.2011. As per Ext.A20, 6% whole body disability was assessed and PW-2, the author of Ext.A20, given candid evidence that 6% disability was assessed as per MC Bride scale considering mal-united patella right and stiffness of right knee. Though PW-2 was cross examined, nothing asked to shake his version or to disbelieve Ext.A20 or his evidence during chief examination. In view of the matter, there is no justification to reduce the disability from 6% to 2% and therefore the disability for the purpose of calculating compensation is fixed at 6%. Thus the disability income is recalculated as under: 6500 x 12 x 16 x 6/100 = 74,880/- out of which Rs. 13,440/- granted by the Tribunal. Hence Rs. 61440/- more granted under the head loss of disability income. 14. According to the learned counsel for the appellant in M.A.C.A. No. 2031/2011 the Tribunal granted loss of earnings for a period of 3 months. Considering the nature of injuries and the consequential treatment, the same required to be increased at least for a period of 6 months. Hence Rs. 61440/- more granted under the head loss of disability income. 14. According to the learned counsel for the appellant in M.A.C.A. No. 2031/2011 the Tribunal granted loss of earnings for a period of 3 months. Considering the nature of injuries and the consequential treatment, the same required to be increased at least for a period of 6 months. It is true that the appellant had sustained patella fracture and on treatment it was reported that there was malunion. Taking note of the said facts, I am inclined to increase loss of earning @ Rs. 6500/- for 5 months, which would come to Rs. 32,500/- out of which Rs. 10,500/- granted. Hence Rs. 22,000/- more is granted under the head loss of earnings. 15. Coming to pain and sufferings and loss of amenities, the Tribunal granted Rs. 12,000/- and Rs. 10,000/- respectively and the learned counsel for the appellant in M.A.C.A. No. 2031/2011 canvassed substantive increase under these heads considering the injuries and treatment. But grant of any amount under these heads is zealously opposed by the respective counsel for the contesting respondents. On scrutiny of the treatment records coupled with the injuries and treatment would substantiate grant of Rs. 8,000/- more under the head pain and sufferings and Rs. 10,000/- more under the head loss of amenities. 16. The contention raised by the 2nd respondent in O.P. (MV) No. 256/2009 and O.P. (MV) No. 257/2009/the appellant in M.A.C.A. No. 718/2012 and petitioner in O.P. (MAC) No. 2613/2012 on asserting that the vehicle was sold in favour of one Shamsudhin on 25.06.2008 and the issue of non joinder also was raised before the Tribunal. But the Tribunal found violations of policy conditions for absence of badge to the driver of the vehicle bearing Reg. No. KL-7R-2617 and non intimation of alteration of the vehicle to the insurer. But the Tribunal negatived the contention as to ownership and found that the 2nd respondent was the owner of the vehicle and also found violations of policy conditions as asserted by the insurance company and recovery right was granted in consequence thereof. 17. The learned counsel for the 2nd respondent in M.A.C.A. No. 2031 of 2011/the appellant in M.A.C.A. No. 718/2012/petitioner in O.P. (MAC) No. 2613/2012 reiterated the contentions that had been advanced before the Tribunal to assert the point that the 2nd respondent was not the owner of the vehicle. 17. The learned counsel for the 2nd respondent in M.A.C.A. No. 2031 of 2011/the appellant in M.A.C.A. No. 718/2012/petitioner in O.P. (MAC) No. 2613/2012 reiterated the contentions that had been advanced before the Tribunal to assert the point that the 2nd respondent was not the owner of the vehicle. It appears that the R.C. owner of the vehicle as on the date of accident on 19.10.2008 is none other than the 2nd respondent. This factual aspect is not disputed at all. Though Exts.B1 to B4 were given reliance to substantiate transfer of ownership and to prove alteration of the vehicle with permission granted by the Transferring Authority, the same are not either the R.C. book or R.C. particulars to see change of ownership. Ext.B2 dated 15.10.2008 issued by the additional Registering Authority, Thrissur would go to show that the 2nd respondent in his name obtained permission to alter the vehicle to use the same as a private mini bus. In the decision reported in United India Insurance Company Ltd. vs. Sunil Kumar and Another, 2017 (4) KLT 1093 (SC) it has been categorically held by the Apex Court that the liability is upon the R.C. owner of the vehicle and subsequent sale without change of ownership is of no significance. If so, the contention raised by the 2nd respondent on asserting that he was not the registered owner of the vehicle could not be substantiated. That apart, in this case Ext.B4 policy covering the period of accident also was issued in the name of the 2nd respondent and the privity of contract is in between the 2nd respondent and the insurer. 18. On the legal position, in the decision reported in New India Assurance Company Limited vs. Mathew, 2021 (4) KHC 168 : 2021 (4) KLT 471 : 2021 (4) ILR 274, relying on the decision of the Apex Court in Mukund Dewangan vs. Oriental Insurance Company Limited, AIR 2017 SC 3668 : 2017 (3) KLT 1000 : 2017 (4) KHC 648 , it was held that badge is required to drive a transport vehicle, unladen weight of which does not exceed 7500 kg. 19. In a subsequent decision reported in Bajaj Alliance General Insurance Co. Ltd. vs. Rambha Devi and Others, 2019 KHC 7367, the ratio in Mukund Dewangan's case (supra) was doubted and the matter referred to a larger Bench and the said reference is still pending. 19. In a subsequent decision reported in Bajaj Alliance General Insurance Co. Ltd. vs. Rambha Devi and Others, 2019 KHC 7367, the ratio in Mukund Dewangan's case (supra) was doubted and the matter referred to a larger Bench and the said reference is still pending. Subsequently, in another decision reported in Bhati M.S. vs. National Insurance Co. Ltd. 2019 KHC 4627 (decided on 29.03.2013) the Apex Court followed Mukund Dewangan's case (supra) to assert the point that a transport vehicle whose gross weight was less than 7500 kg. which covers the definition of light motor vehicle under Section 2(21) of the Motor Vehicles Act, 1988, does not require a badge. So, the legal position settled in Mukund Dewangan's case (supra) still holds the field. It is not in dispute that the insurance company is duty bound to prove that the un-laden weight of the Tata Sumo involved in the accident is beyond 7500 kg. The only document produced by the insurance company marked as Ext.B4 does not show the weight of the vehicle. A photocopy of the R.C. particulars of the vehicle bearing Reg. No. KL-7R-2617 would go to show that the un-laden weight of the vehicle is 1700 kg. If so, the vehicle involved in the accident is a light motor vehicle and no badge is required to drive such a vehicle. Therefore, the Tribunal went wrong in granting recovery right in favour of the insurance company. 20. In the impugned award, the Tribunal granted recovery right after finding policy violation on the finding that the vehicle was altered without intimating the insurance company. However, Ext.B2 would go to show that the R.C. owner obtained permission to alter the vehicle to use as a mini bus for private use after altering its status as a transport bus. Now the pertinent question is, whether non intimation of alteration of a vehicle categorised as `public transport vehicle' as a vehicle for private use, is a fundamental breach of policy conditions? I do not think that change of a mini bus used as a transport vehicle to a mini bus for private use by itself is a fundamental violation of policy conditions, that too, having done after obtaining permission from the registering authority. Therefore, the Tribunal went wrong in granting recovery right based on this finding also. 21. I do not think that change of a mini bus used as a transport vehicle to a mini bus for private use by itself is a fundamental violation of policy conditions, that too, having done after obtaining permission from the registering authority. Therefore, the Tribunal went wrong in granting recovery right based on this finding also. 21. Therefore, the recovery right granted in favour of the insurance company in both cases under challenge in O.P. (MAC) No. 2613 of 2012 and M.A.C.A. No. 718 of 2012 is unsustainable and the same is set aside. Therefore, it is held that the insurance company is liable to indemnify the insured and the insurance company is liable to pay the entire award amount in both cases including the interest and cost thereof. 22. In the Result: (i) M.A.C.A. No. 718 of 2012 and O.P. (MAC) No. 2613 of 2012 are allowed as above. (ii) M.A.C.A. No. 2031/2011 is allowed in part. It is held that the appellant/petitioner is entitled to get Rs. 1,01,440/- (Rupees One lakh one thousand four hundred and forty only) as enhanced compensation and the award impugned is modified as above with the same rate of interest granted by the Tribunal from the date of petition till the date of deposit or realisation. The insurance company is directed to deposit the same in the name of the appellant within two months from today and the appellant is at liberty to release the same, on deposit.