Chacko P.M. Alias Thankachan Vs. Rosamma Antony and ors. - Court Judgment

Excerpt:
- labour & services appointment: [v.k. bali, ch, p.r. raman & s. siri jagan, jj] post of pharmacist in homeopathy subordinate service - special rules for kerala homeopathy subordinate service rules, 1999 introducing new qualifications vacancy arising subsequent to coming into force of the said special rules held, vacancies have to be filled up only in accordance with special rules, 1999. unfilled vacancy that had arisen prior to amendment cannot be filled up by candidate not possessing amended qualifications prescribed by special rules. state government has the power to frame or amend the special rules with or without retrospective effect. mohanan k.r. & anr vs director of homeopathy, kerala homeopathy services, trivandrum & ors. - 25,000/- for loss of consortium for the widow and for loss of love and affection for the other petitioners and in particular the minor children and rs. 3 clearly indicates that the tribunal was going by the oral evidence and did not properly consider the documentary evidence. the story must have been clearly a concocted one realising the fact that the policy being an act policy would not help the first respondent. b-8 clearly shows that the policy was taken on 25.11.1986 in the name of the first respondent and is only an act policy covering third party risk. it is argued that once the existence of a valid policy is established the insurer would be liable to indemnify the loss even in cases like the present one relying on the tariff advisory committee instructions and the decisions reported in sugar chand phool chand jain v. but, absence of the statutory provisions covering passenger's liability is made good in india by the instructions of the tariff advisory committee which is a statutory body. this clearly shows that in order to make the intention clear that the comprehensive private car policy covers passenger's liability, the tariff advisory committee decided to amend clause 1 of section ii of private car comprehensive policies by incorporating certain wording after the words 'death of or bodily injury to any person'.the words to be specifically introduced are 'including occupants carried in the motor car provided that such occupants are not carried for hire or reward'.the circular mentions that this amendment should be deemed to have come into force from 25th march, 1977. it is quite clear that these instructions would cover only comprehensive policies and they do not cover act policies or third party risk policies like exh. a reading of the judgment clearly indicates that the judgment proceeded more on a concession made by mr. 25,000/- towards loss of consortium to the wife and for loss of love and affection for all the claimants and father's guidance to the children. it is not contended before us that no compensation should have been awarded for loss of love and affection and guidance and therefore it is unnecessary for us to consider whether this is a valid head of claim. 25,000/-for loss of love and affection, rs.d.j. jagannadha raju, j.1. these two appeals arise out of an award dated 5.5.1989 in m.v.o.p. no. 520 of 1987 on the file of the motor accidents claims tribunal, kottayam. m.f.a. no. 566 of 1989 is filed by the claimants who are legal representatives and dependants of antony alexander who died on account of injuries sustained by him in the accident in which car klc 4828 driven by the appellant in m.f.a no. 627 of 1989 was involved.2. parties to the appeals will be referred to in this judgment by their ranking before the tribunal. the facts of the case are: first respondent, dr. t.v. jose, is registered owner of the car. second respondent was the driver employed by him. the car was insured by the third respondent. the insurance policy was valid for the period 25.11.1986 to 24.11.1987. on 9.4.1987, antony alexander and others were travelling in the car from kottayam to shertallai. the car reached kothanalloor at about 7.45 p.m. on account of rash and negligent driving by the second respondent, the car swerved to right side, hit against compound wall on the right side and as a result of the impact the back door of the car suddenly flew open and alexander was thrown out. he hit against the compound wall and sustained 21 injuries. he was taken to medical college hospital, kottayam. he died at 4.30 a.m. the next morning.3. petitioners, the widow, children and parents of antony alexander, filed claim petition contending that they are entitled to compensation of over rs. 2,50,000/- but limited the claim to rs. 2,00,000/-. they claimed rs. 1,000/- for treatment charges, rs. 1,000/- for transport charges, rs. 200/- for damage to clothing, rs. 4,000/- for funeral expenses, rs. 25,000/- for pain and suffering, rs. 25,000/- for loss of consortium for the widow and for loss of love and affection for the other petitioners and in particular the minor children and rs. 2,00,000/- for loss of support (dependency). according to them, alexander who was 40 years old was earning rs. 1,450/- per month and spending rs. 900/-for their upkeep.4. the first respondent, rw1, resisted the claim. he denied that he is registered owner of the car, but claimed that he sold it to mrs. k.k. bhavani, rw 2, on 7.5.1986, that she in turn sold it to aboobacker, rw 4, who exchanged it for another car of george mathew (brother of rw 5) and subsequently george mathew exchanged the car for another car of roy thomas who was therefore the real owner of the car on the date of the accident. he also contended that second respondent was not his employee. he disclaimed his liability and contended that if at all only respondent nos. 2 and 3 were liable.5. the second respondent denied that he drove the car in a rash and negligent manner. according to him, a cyclist coming from the opposite direction suddenly swerved to the middle of the road and to avoid the cyclist he applied brakes as a result of which the car skidded, turned round and alexander was thrown out. he also pointed out that the first respondent is the registered owner of the car and third respondent is the insurer and the policy was subsisting on the date of the accident. according to him the income of alexander was only rs. 500/- per month.6. the third respondent contended that policy was only an act policy and did not cover risk to passengers in the car and that alexander being a gratuitous passenger in a private car the insurer is not liable to indemnify the insured. the claim was also characterised as excessive.7. the tribunal arrived at the following conclusions: the accident was on account of rash and negligent driving of the car by the second respondent while proceeding from south to north in an attempt to overtake a lorry which was ahead, went to the right side of the road and hit against the wall on the eastern side. the case of a cyclist coming suddenly from the opposite direction and swerving to the middle of the road was not proved. the various transfers of the car alleged by the first respondent were proved and on the date of the accident real owner was roy thomas though registration continued to stand in the name of the first respondent and therefore the first respondent was not liable to pay compensation. alexander who was aged 40 years had a monthly income of rs. 1,150/-, he was spending rs. 700/- on himself and spending the balance amount of rs. 450/- for the claimants who are dependants. the joss of support (dependency) per year was calculated at rs. 5,400/- and adopting a multiplier of 20, compensation on that account was fixed at rs. 1,08,000/-. the tribunal did not make any deduction on account of lump sum payment or unforeseen contingencies taking into account the likelihood in the increase of income in future and inflationary trend. the tribunal awarded rs. 1,000/- for treatment expenses, rs. 500/-for transport expenses, rs. 200/- for damage to clothing, rs. 1,000/- for funeral expenses, rs. 5,000/- for pain and suffering, rs. 25,000/-for loss of consortium for the widow and loss of affection for the other dependants. thus an award was passed directing the driver of the car to pay total compensation of rs. 1,40,700/-to the claimants with interest and proportionate costs.8. regarding exh. b-8, insurance policy issued by the third respondent in the name of the first respondent, the tribunal held that first respondent did not obtain the policy and no evidence was adduced to prove the identity of the insured and the insurer was not informed about the successive transfers and the policy lapsed. accordingly third respondent was held not liable to indemnify. the tribunal did not decide if the policy covers risk to passengers. the award was passed for rs. 1,40,700/- with interest at 12 per cent per annum from the date of petition against the second respondent, namely, the driver. the tribunal also gave direction as to the manner in which compensation is to be shared among the claimants.9. m.f.a. no. 627 of 1989 is filed by the claimants. they contend that rs. 450/- per month, i.e., rs. 5,400/- per year fixed as the amount which was being spent by alexander for claimants is too meagre and should have been fixed at rs. 10,000/- per year. they also contend that the tribunal was in error in upholding the alleged transfers of the car and the tribunal ought to have held that on the date of the accident first respondent himself was the real owner and a valid policy subsisted on that date and the insurer was liable. according to them, the alleged transfers are bogus, fictitious and make believe. they contend that oral evidence should not have been relied on in preference to documentary evidence of clear circumstances.10. m.f.a no. 566 of 1989 is filed by the driver of the car. mr. k. jayakumar appearing for the appellant supported the claimants' contention that the transfers are bogus and make believe. learned counsel for the appellant also challenged the evidence of rws 1 to 5 as false and trumped up. according to learned counsel the alleged transfers are in violation of section 31-a of the motor vehicles act.11. mr. o.v. radhakrishnan appearing for the first respondent supported the alleged transfers and the finding of the tribunal in that regard. he relied on the decision in kunjuraman v. saramma 1987 acj 1081 (kerala), to contend that the real owner can be different from the registered owner and since the second respondent is not the employee of the first respondent, first respondent cannot be held liable.12. mr. syed mohammed ali appearing for the third respondent contended that the policy, exh. b-8, is only an act policy and did not cover risk to passengers in the car and the tribunal rightly exonerated the insurer. learned counsel also supported the finding of the tribunal upholding various transfers and contended that the transfers were not intimated to the insurer and the insurer had not accepted the transfer and hence the policy was not subsisting and the insurer was not liable.13. the following points arise for consideration in the two appeals:(1) whether the tribunal is justified in holding that the first respondent is not liable to pay compensation?(2) whether the insurance company is not liable to indemnify the first respondent in this case on the grounds (i) that the policy is only an act policy and does not cover risk to passengers in a private car and (ii) that the policy lapsed due to various transfers which were effected without intimation to the insurer?(3) is the compensation awarded by the tribunal correct and whether it is liable to be reduced as claimed by the driver of the car or is liable to be enhanced as claimed by the claimants?point no. 114. a perusal of the tribunal's order on issue no. 3 clearly indicates that the tribunal was going by the oral evidence and did not properly consider the documentary evidence. the tribunal believed the numerous transfers set up by the first respondent on the basis of the oral evidence and without seriously considering the documents disclosing the first respondent as the real owner and the fact that exh. b-8, insurance certificate, stood in the name of the first respondent and in spite of the fact that contemporaneous documents of transfers for payment of consideration were lacking. the tribunal's mind appears to have been very much influenced by the fact that under law a real owner can be different from the registered owner. the tribunal did not consider whether on the evidence and circumstances of the case the transfers were real. in kunjuraman v. saramma 1987 acj 1081 (kerala), a division bench of this court dealing with the scope of sections 31 and 110-a of the motor vehicles act observed at page 1084 as follows:we are, therefore, fortified in taking the view that the actual owner can be different from the registered owner and if it is proved that the registered owner has transferred the ownership to a different person the tortious liability will have to be borne by the transferee despite the non-transfer of the registration. in such cases the registered owner cannot be made liable.the real controversy is whether there was in fact a transfer or transfers.15. we shall now briefly indicate how the tribunal went wrong in upholding the alleged transfers. exh. a-1 is a certified copy of the f.i.r. and f.i. statement. it indicates the first respondent as the owner of the vehicle and second respondent as the driver. similar particulars are found in exh. a-5, motor vehicles inspector's report prepared on 20.4.1987. rw1 admits that there is no document to indicate the sale of the car by him to rw 2 for rs. 40,000/- on 7.5.1986. no receipt for payment of consideration is produced. no agreement for transfer is produced. according to the oral evidence, rw 2 sold away the car within five days to rw 4. this sale is not supported by any document. there is no independent proof to show that rw 4 paid consideration to rw 2 through her son rw 3. in fact rw 4 claims that she does not know anything directly about the transaction and everything was done by her son rw 3. rw 4 claims that she purchased the car on 12.5.1986, paid cash consideration of rs. 30,000/-and agreed to pay the balance amount of rs. 10,000/- towards hire-purchase instalments and she subsequently exchanged the car with the vehicle belonging to george mathew under exh. b-6 agreement. rw 3 was the then deputy superintendent of police at tirur. george mathew was not examined. his brother was examined as rw 5. it is said that on 18.8.1986 george mathew exchanged the car with the vehicle belonging to roy thomas under exh. b-7. roy thomas was not examined. exhs. b-6 and b-7 are not original documents but are carbon copies. these copies were produced by the first respondent. he did not explain how he got custody of these documents. it is also not explained why original agreements were not caused to be produced. the two transactions in which the car was purchased and sold or transferred within a few days appear to be very strange. it is the admitted case of rws 1 to 5 that none of these transfers had been intimated either to the transport authorities or to the insurance company or the hire-purchase financier.16. the tribunal placed reliance upon exhs. b-1 to b-5, receipts which evidence payment of instalments to hire-purchase financier. when we closely examine these documents we find that cash receipts indicate payment made by the first respondent or payment made by rw 4 on behalf of the first respondent. there is nothing to indicate that rw 4 paid the money as a transferee under an agreement for sale. the tribunal wholly ignored the contents of exhs. b-3 to b-5 and persuaded itself to believe that rw4 paid the instalments in her own right. the tribunal did not advert to the fact that exhs. b-6 and b-7 are merely carbon copies. as against these documents there are clinching circumstances to show that the first respondent is the owner of the car even on the date of the accident. admittedly he continued to be the registered owner. there is no dispute that the registration book does not contain endorsement in relation to any of the alleged transfers. it is admitted that the transport authorities, insurance company and then hire-purchase financier were not informed of any of these transfers. there are entries in exhs. a-1, a-5 and b-8 to show that first respondent continued to be the real owner. dr. t.v. jose of alphonsa hospital was described as the insured in exh. b-8; he is none other than the first respondent. the policy was issued on 25.11.1986 through agent p.k. george of kottayam and cover note no. 210225 was issued by the agent on 25.11.1986. yet no evidence was adduced by the first respondent to show who paid the premium and who obtained the cover note and why the policy was obtained in the name of the first respondent. in the absence of evidence on these aspects, it is reasonable to presume that what the document discloses is the real state of affairs. it is obvious that the insurance policy was taken by the first respondent, the registered owner, because he continued to be the real owner. it should be remembered that the hire-purchase instalments were paid by or on behalf of the first respondent. it may be that the person who paid the money was only acting as an agent of the first respondent.17. nothing prevented the first respondent from examining the agent p.k. george who issued the cover note which formed the basis for exh. b-8, insurance certificate. it should also be remembered that it is the admitted case that sections 31 and 31-a of the motor vehicles act are not complied with regarding the numerous transactions now spoken to by the first respondent and rws 2 to 5. the first respondent is a medical practitioner occupying a responsible position in the society. it cannot be assumed that he would have acted against law or in violation of law. it cannot also be presumed that rw 3, a senior police officer, would have acted in violation of law. sections 31 and 31-a lay down elaborately the procedure for transfer of vehicle and in particular vehicle which is subject to a hire-purchase agreement. in the absence of satisfactory evidence it cannot be presumed that all these persons acted in violation of law and that the transactions were entered into at short intervals of time. the whole story appears to be an afterthought after the accident and for the first time it has seen the light of the day when the first respondent filed his written statement. the story must have been clearly a concocted one realising the fact that the policy being an act policy would not help the first respondent. the tribunal committed an error in ignoring the documents and circumstances and in persuading itself to accept the oral evidence. we hold that the tribunal's finding that the first respondent was not the real owner on the date of the accident is not correct. he continued to be the real owner and employer of the second respondent.point no. 218. exh. b-8 clearly shows that the policy was taken on 25.11.1986 in the name of the first respondent and is only an act policy covering third party risk. it is not a comprehensive policy. the premium paid is rs. 120/-. there are no endorsements or payment of premium to cover injury to passengers in the car. the contention that because there is an insurance policy, the insurer third respondent is liable does not appear to be correct on the facts of this case. it is argued that once the existence of a valid policy is established the insurer would be liable to indemnify the loss even in cases like the present one relying on the tariff advisory committee instructions and the decisions reported in sugar chand phool chand jain v. santosh gupta 1985 acj 585 (delhi), oriental fire & general ins. co. ltd. v. sanatan pradhan 1988 acj 792 (orissa) and new india assurance co. ltd. v. satyanath hazarika 1989 acj 685 (gauhati).19. the decision in sagar chand phool chand jain v. santosh gupta 1985 acj 585 (delhi), refers to the tariff advisory committee instructions and observes in para 5 as follows:.there is no statutory liability for the insurance company to pay compensation to a passenger, a contract of insurance can provide otherwise...the motor vehicles (passenger insurance) act of 1971 made insurance cover for the passenger's liability compulsory. but, absence of the statutory provisions covering passenger's liability is made good in india by the instructions of the tariff advisory committee which is a statutory body. the instructions of the tariff advisory committee referred to above have come into operation with effect from 25th march, 1977...in para 6 the court observed that in that particular case the court was dealing with a comprehensive insurance policy for a private car. copy of circular issued on the basis of tariff advisory committee instructions is produced before the court. this clearly shows that in order to make the intention clear that the comprehensive private car policy covers passenger's liability, the tariff advisory committee decided to amend clause 1 of section ii of private car comprehensive policies by incorporating certain wording after the words 'death of or bodily injury to any person'. the words to be specifically introduced are 'including occupants carried in the motor car provided that such occupants are not carried for hire or reward'. the circular mentions that this amendment should be deemed to have come into force from 25th march, 1977. it is quite clear that these instructions would cover only comprehensive policies and they do not cover act policies or third party risk policies like exh. b-8. the decision in the new india assurance co. ltd. v. satyanath hazarika 1989 acj 685 (gauhati), is a decision by five judges of the gauhati high court. it refers to the tariff advisory committee instructions and lays down that the tariff advisory committee instructions cover gratuitous passengers. in this decision also the court was dealing with a comprehensive insurance policy and came to the conclusion that the statutory instructions of the tariff advisory committee would apply to all those cases which are pending before the mac.t. or appellate authorities on 25th march, 1977. in the present case the policy is not a comprehensive policy and the tariff advisory committee instructions have no application to an act policy which under section 95 (1) (b) (i) covers only third party risk. oriental fire & general ins. co. ltd. v. sanatan pradhan 1988 acj 792 (orissa), is a case where a jeep which was insured was carrying members of a dance troupe for a dance performance at the residence of the owner of the vehicle. when the vehicle met with an accident, attempt was made to evade liability on the ground that the vehicle was not being used for a private use and the passengers were gratuitous passengers. a reading of the judgment clearly indicates that the judgment proceeded more on a concession made by mr. s.c. sinha appearing for the respondents who also referred to the tariff advisory committee instructions and the circular issued on 31st march, 1977. the decision does not indicate that the court was dealing with a case of an act policy or a policy which covers only third party risks. considering the nature of the policy taken under exh. b-8, it can safely be said that in the present case the risk to the passengers in the car is not covered by the insurance policy and as such there is no question of the insurance company being liable to indemnify the owner.20. there is no precise evidence as to whether the deceased and other people who were in the car at the time of the accident were travelling as gratuitous passengers or whether they were carried for hire or reward. we are not going into that controversy in view of the fact that the policy is only an act policy and it covers only third party risks. we hold on point no. 2 that the insurance company cannot be made liable in this case. the policy, exh. b-8, was subsisting on the date of the accident and being only an act policy covered only third party risks. it does not cover risk to passengers. the tariff advisory committee instructions do not apply to the present case.point no. 321. it is argued on behalf of the claimants that loss of support (dependency) reckoned as rs. 450/- per month or rs. 5,400/- per year is too meagre and it should have been fixed or reckoned at least as rs. 10,000/- per annum, considering the fact that the income of alexander has been pointed out to be rs. 1,150/- per month. it is also contended that the compensation awarded for pain and suffering, namely, rs. 5,000/- as against the claim of rs. 25,000/- is too meagre. on the other hand, appellant in m.f.a. no. 566 of 1989 contends that no compensation should have been awarded for pain and suffering. learned counsel also contended that there is no justification to increase the compensation under the head 'loss of dependency'. on the other hand, according to him, multiplier should not have been fixed at 20. the tribunal was not justified, it is contended, in not making deduction for unforeseen contingencies and advantage of lump sum payment.22. the evidence reveals that antony alexander was attending to three jobs. he was getting rs. 500/- as manager of a film distribution company, chalachitra, as part-time employee of two other companies he was getting a remuneration of rs. 350/- per month and rs. 300/- per month. the total income was rs. 1,150/- per month as seen from exhs. a-12 to a-14, salary certificates. pw 1 deposed that antony alexander was spending rs. 300/- per month for his transport and rs. 240/- per month for his food besides expenses for smoking etc. the tribunal fixed rs. 700/- per month as the amount which he was spending on himself and determined the amount due for the claimants at rs. 450/- per month. considering the fact that antony alexander had a large family consisting of his aged parents, wife and three children, he could not be expected to spend lavishly on himself. considering the nature of his employment, need for his shuttling to different places, it is reasonable to hold that he would have been spending 50 per cent of his income for his own expenses and would have been spending remaining 50 per cent, that is, rs. 575/- for his dependants. this would be rs. 6,900/- per year. exh. a-11 shows that antony alexander was 40 years old at the time of his death. even then we are of opinion that 20 as the multiplier would be excessive. multiplier of 15 would be more reasonable.23. it should be remembered that the tribunal did not make any deduction for advantages of lump sum payment and unforeseen contingencies including possibility of premature death. at the same time the tribunal did not take into consideration and we have also not taken into consideration the likelihood of increase in earning and the inflationary trend prevailing at present. we agree therefore that no deduction need be made.24. while the claimants claimed rs. 25,000/-as compensation for pain and suffering the tribunal awarded only rs. 5,000/-. it should be remembered that the injured was unconscious. there is no precise evidence as to whether and when he regained consciousness. it is quite possible that he might have been conscious for a short period and suffered pain and agony. the grant of rs. 5,000/- as compensation in these circumstances appears to be unjustified. we reduce the amount of compensation under this head to a nominal amount of rs. 1,000/-.25. on the date of the accident alexander's wife was aged 35 years and his children were aged 12 years, 11 years and 10 years respectively and his parents are old. the tribunal awarded rs. 25,000/- towards loss of consortium to the wife and for loss of love and affection for all the claimants and father's guidance to the children. it is not contended before us that no compensation should have been awarded for loss of love and affection and guidance and therefore it is unnecessary for us to consider whether this is a valid head of claim. we find no justification to reduce the amount of compensation awarded. we also do not see any justification to interfere with the compensation awarded for treatment charges, transport charges, damage to clothing and funeral expenses.26. on the basis of loss of dependency or support, the amount is fixed at rs. 6,900/- per year. adopting the multiplier of 15, the total loss is rs. 1,03,500/-. adding to this, sum of rs. 1,000/- for pain and suffering, rs. 25,000/-for loss of love and affection, rs. 1,000/- for treatment charges, rs. 1,000/- for funeral expenses, rs. 500/- for transport charges, rs. 200/- towards damage to clothing, the total compensation payable is rs. 1,32,200/-.27. in view of our finding on point no. 1, the first respondent who is the owner of the car on the date of the accident and registered owner is liable vicariously for the negligence of his driver, second respondent. hence the award should be passed against respondent nos. 1 and 2. as indicated earlier, the insurance company is not liable to indemnify the first respondent in this case.28. in the result, m.f.a no. 566 of 1989 is allowed in part. the award is modified as follows: an award is passed in favour of the petitioners against first and second respondents for a sum of rs. 1,32,200/- with 12 per cent interest per annum from 7.7.1987 till date of realisation and proportionate costs. respondent nos. 1 and 2 shall deposit the amount within one month from today. the other directions issued by the tribunal regarding the quantum of compensation to be paid to the 5th and 6th petitioners and the manner in which the other petitioners shall share the compensation and the directions regarding drawal of interest and deposits shall stand confirmed.29. m.f.a no. 627 of 1989 is allowed in part. an award is passed against respondent nos. 1 and 2 as indicated above. the claim for enhancement is rejected and the award is modified as indicated above.30. parties shall bear their own costs in the appeals.