Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN THURSDAY, THE16H DAY OF JULY201525TH ASHADHA, 1937 MACA.No. 1091 of 2005 ( ) -------------------------- (AGAINST THE AWARD IN OPMV8702000 of ADL.D.C. & MACT,THODUPUZHA DATED1405-2004) APPELLANT(S)/APPELLANT/PETITIONER IN OP:: -------------------------------------------- GIBI AGED28YEARS, THOTTUNGAL HOUSE, AMAYAPRA KARA UDUMBANNOOR P.O., UDUMBANNOOR VILLAGE. BY ADVS.SRI.M.A.ABDUL HAKHIM SRI.JYOTHISH.J.KALLINGAL SMT.M.A.VAHEEDA BABU RESPONDENT(S)/RESPONDENTS:: ------------------------------ 1. SHABEER T.A. THAIPPARAMBIL HOUSE, UDUMBANNOOR P.O., THODUPUZHA.
2. N.K. HAMEED, S/O. KOYAKUTTY, NADUPARAMBIL HOUSE, KARIMANNOOR P.O. KARIMANNOOR VILLAGE.
3. THE NATIONAL INSURANCE CO. LTD., THODUPUZHA. R1 BY ADV. SRI.T.V.GEORGE R,R3 BY ADV. SRI.LAL GEORGE THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON1607-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMACHANDRA MENON & ANU SIVARAMAN, JJ.
.............................................................................. M.A.C.A.No. 1091 OF2005......................................................................... Dated this the 16th July, 2015
JUDGMENT
P.R. Ramachandra Menon, J: Inadequacy of compensation ordered by the MACT, Thodupuzha in O.P.(MV)No. 870 of 2000, in respect of the injuries sustained by the appellant and exoneration of the I nsurance Company from the liability, made the appellant to approach this Court by filing this appeal.
2. The accident occurred on 15.06.2000 when the appellant was travelling in the cabin of a goods carriage bearing No.KL.6/5394 along with the owner of the goods. They were proceeding from Kozhikode to the destination at Idukki. Because of rash and negligent driving, the vehicle capsized causing serious injuries to the appellant which led to the claim petition. The matter was considered by the Tribunal along with a connected matter and a common award was passed, whereby a total sum of Rs.39070/- was awarded with interest at the rate M.A.C.A.No. 1091 OF20052 of 6% per annum, based on the notional income taken as Rs.2000/- per month, thus giving rise to the challenge.
3. Heard the learned Counsel for the appellant as well as the Standing Counsel for the Insurance Company and the learned Counsel for the first respondent/Driver. Despite completion of service of notice by effecting paper publication , the second respondent, who is the owner/insured has not appeared before this Court .
4. The factual position revealed from the materials on record is that the appellant did not choose to enter the box and adduce any evidence with regard to the claim, nor was there any evidence, documentary or otherwise, to show the actual income. No certificate was produced to show the percentage of disability as well. It was in the said circumstance, that the matter was finalised by the Tribunal as mentioned above.
5. After hearing both the sides, we find that fixation of negligence upon the driver of the lorry is correct and not assailable. Coming to the compensation awarded , the following are the amounts awarded by the Tribunal under different heads. M.A.C.A.No. 1091 OF20053 Head Amount awarded by the Tribunal (Rs.) Loss of earning 6000 Transportation to hospital 1000 Extra nourishment 500 Damage to cloths 250 Bystander expense 1000 Medical Bills 15321 Pain and suffering and loss of amenities 15000 TOTAL39071(Rounded to Rs.39070/-) 6. We find that the appellant was initially admitted in the Medical College, Kozhikode, from where he was taken to another hospital at Thodupuzha. Later, he had to be hospitalized at Kolencherrry for different spells. By virtue of the turn of events, this Court finds that the amount of Rs.1000/- awarded under the Head Transportation to hospital is inadequate and that the appellant is entitled for Rs.1000/- more under this Head. Considering the prolonged treatment and the necessity to have support of the bystander, we find it fit and M.A.C.A.No. 1091 OF20054 proper to grant Rs.1000/- more, over and above Rs. One thousand awarded by the Tribunal . The injuries sustained by the appellant to the right hand and such other injuries have been taken note of by the Tribunal. We enhance the same by Rs.5000/-, more; over and above Rs.15000/- awarded under the Head-'pain and suffering'. It is true that the appellant did not produce any Disability Certificate, but the fact remains that because of the prolonged treatment, the loss of amenities sustained by the appellant requires to be compensated. We grant Rs.10000/- under this Head. Because of the lapse on the part of the second respondent/owner of the vehicle, the appellant had incurred much expenditure by causing substituted service so as to ensure his presence. Even after such publication, the said respondent has not turned up. In the above circumstance,we grant a sum of Rs.5000/- towards incidental expenses. The total enhanced compensation, over and above the amount awarded by the Tribunal would come to Rs.22000/-. which will carry interest at the rate of 9% per annum from the date of application, till satisfaction. M.A.C.A.No. 1091 OF20055 7. With regard to the liability fixed upon the owner, exonerating the insurance company, it is to be noted that the policy produced before the Tribunal did not provide for coverage . The added premium collected, over and above the 'third party premium' was only in respect of the enhanced 'T.P. Property liability' and no premium was collected in respect of passengers to be carried in the cabin of the goods carriage. The law is well settled that a passenger travelling in a goods vehicle is not entitled for any coverage in view of law declared by the Apex Court in New India Assurance Co. Ltd. vs. Asha Rani and others (2010)3 SCC223. The case of the appellant is that he was travelling in the vehicle along with the owner of the goods and as such, he is to be deemed as a representative of the owner of the goods. We find it difficult to accept the said proposition, in view of the fact that the statute recognises only the owner or his representative to be carried in the cabin of a goods carriage, who is entitled for coverage under the policy.
8. In the instant case, admittedly, the owner was also travelling in the cabin of the goods carriage and hence there was M.A.C.A.No. 1091 OF20056 no need, necessity or occasion for the appellant to travel as a 'representative of the owner of the goods'. He might have travelled as an employee of the owner of the goods, which does not envisage any coverage under the policy.We find support from the land declared by the apex court in Sanjeev Kumar Samrat vs. National Insurance Co.Ltd.[( 2013 (1) KLT41(SC)] and by another Division Bench of this Court in MACA1641of 2010. In the above circumstance, we find that the finding of the Tribunal, exonerating the insurance company from the liability does not call for any interference. The enhanced amount shall be satisfied by the concerned respondents with interest as ordered above . Appeal is disposed of P.R. RAMACHANDRA MENON, JUDGE. ANU SIVARAMAN, JUDGE. lk