Rajni (Minor) Vs. P. Narayanan and ors. - Court Judgment

U.L. Bhat, J.

1. MFA 447 of 1985 is filed by the claimant involved in an accident involving lorry KLZ3229. The driver and owner of the lorry are the appellants in MFA 560 of 1985. Parties will be referred to in this Judgment by their rank before the Tribunal.

2. The claimant, a girl aged 11 years, studying in the fourth standard was struck down by the lorry when she was walking along the northern side of the road on 1.10.1982 at4 p.m. Her right arm was crushed and she was treated as an in-patient for 20 days in the District Hospital, Trichur and thereafter as an out-patient, Ext. Al out-patient ticket shows that she was so treated for about two months after her discharge from the hospital. Her right arm had to be amputated and she lost one year in school. Her father, P.W.1, representing her filed a claim petition seeking compensation of Rs. 84, 350/- from the driver, the ostensible owner and the insurer respectively shown as respondents 1 to 3 before the Tribunal. On a contention raised by the second respondent that at the time of the accident fourth respondent was the owner and the second respondent purchased the lorry from the fourth respondent long after the accident, the latter was impleaded. Various defences were raised by the respondents before the Tribunal. The Tribunal held that the accident was the result of rash and negligent driving of the lorry by its driver, that the vehicle was not covered by insurance policy during the relevant period, quantified the compensation at Rs. 38, 000/- and passed an award against the driver (first respondent before the Tribunal) and the owner (fourth respondent before the Tribunal). The award is now challenged.

We notice that none of the parties before us challenges the finding of the Tribunal that the accident was the result of rash and negligent driving by the driver of the lorry. According to the appellants in MFA 560/85, the finding of the Tribunal that the vehicle was not validly insured at the time of the accident is erroneous and the insurer, namely, the third respondent before the Tribunal should have been made liable for the amount involved in the award. According to the appellant in MFA 447 of 1985, the amount awarded is too low.

4. There is no dispute that at the time of the accident the lorry belonged to the fourth respondent before the Tribunal. On 31-12-1983 fourth respondent sold the lorry to the second respondent. In the counter filed by the Insurance Company, it was stated that the vehicle KLZ 3279 is covered by policy No. 4233300419 4233300419 issued on 30.4.1983 for a period from 30.4.1983 to 29.4.1984 and that the vehicle involved in the accident KLZ 3229 was not covered by any policy. This plea was raised on the basis of the number of the policy given in the claim petition. In view of the contention raised by the insurer, the number of the policy given in the claim petition was amended as 4236220283 4236220283 . The insurer filed an additional counter alleging that the policy did not relate to the vehicle involved in the accident.

5. Ext. B1 is the policy produced by the third respondent before the Tribunal. The name and address of the insured is shown as M.M. Subramanian, Chandralayam, Pattambi who is the fourth respondent. The period of the policy is shown as 30.4.1982 to 29.4.1983. The date of issue is 30.4.1982 and the place of issue is Palghat. The policy number is 4236220283 4236220283 . The registration number of the vehicle is given as KLZ 3279. The vehicle is shown as that of Tata make, 1974 bring the year of manufacture. If the registration number of the vehicle given in Ext. B1 is correct, it must follow that Ext. B1 policy does not relate to the lorry involved in the accident which bears registration number KLZ 3229.

6. Exts. B2 and B3 are copies of registration particulars in regard to lorry KLZ 3279. Exts. B2 and B3 describe the vehicle as Tata Diesel Vehicle. These documents show that the vehicle originally belonged to C.H. Kunhabdulla who transferred it to M.P. Moideen in 1979 who in turn transferred it to K.P. Nanu in the same year and K.P. Nanu transferred it to K. Gopalan on 25.5.1982. This would indicate that on that date of the accident the-owner of the lorry KLZ 3279 was K.P. Nanu and not M.M. Subramanian. It is also significant to note that all the persons who at various stages were owners of the lorry KLZ 3279 belong to Kozhikode and none of them belong to Palghat district.

7. We directed the insurer to produce the proposal form, cover note, certificate of insurance, register of insurance policies and any other relevant record relating to Ext. Bl policy. All these document except the proposal form and register of insurance policies have produced before us. These documents are in tune with Ext. Bl policy. The proposal form and the register of insurance policies have not been placed before us and the insurer has not filed any affidavit explaining why the documents could not be produced. learned Counsel appearing for the insurer submitted that he has been instructed to state that the proposal form is not available in the office and that may be because there was no written proposal. learned Counsel is not able to explain why the register of insurance policies has not been made available. In these circumstances, we have to take it that the insurer is not prepared to produce all the relevant documents.

8. No party has been able to produce any of the records relating to the lorry KLZ 3229. Admittedly at the relevant time it belonged to M.M. Subramanian. There is no case that M.M. Subramanian was at the relevant time the owner of lorry KLZ 3279: on the other hand, Exts. B2 and B3 would indicate that M.M. Subramanian had nothing to do with the lorry at any time and much less at the time of accident. There was, therefore, absolutely no reason for M.M. Subramanian to take out an insurance policy for lorry KLZ 3279. The preponderance of the probability is that he intended to take out and actually took out an insurance only for his lorry, namely, KLZ 3229 and by some typographical error the number was mentioned as 3279 instead of 3229. We are, therefore, satisfied that the lorry involved in the accident was at the relevant time covered by Ext. B1 policy issued by the insurer. We are not prepared to accept the contention advanced by learned Counsel for the insurer that since the mistake in the number of the lorry in Ext. B1 policy was not corrected during the currency of the policy, no relief can be granted against the insurer. We set aside the finding of the Tribunal and hold that the vehicle was, at the relevant time, insured by the third respondent before the Tribunal and the third respondent would liable to pay compensation in its capacity as insurer.

9. The only contention urged by learned Counsel for the appellant in MFA 447 of 1985 is the one relating to quantum of compensation. The total calim was to the extent of Rs. 84, 350/-. The Tribunal quantified the compensation payable at Rs. 38, 000/-. The claim under various heads and the amounts awarded thereunder can be summarised as follows:

Name Account Amount

Claimed Awarded

Rs. Rs.

Medical expenses 5, 000/- 3, 000/-

Extra nourishment 1, 000/-

Payment of nursing attendant 2, 000/-

Expenses for members of the family to go

to Trichur Hospital 2, 000/- Nil

Loss of expectation of life 10, 000/- 2, 300/-

Pain, mental agony and depression 10, 000/-

For pain and suffering 10, 000/- 5.500/-

Loss of amenities of life 10, 000/- Nil

Loss of leisure 3, 000/- Nil

Loss of marriage prospects 5, 000/- 10, 000/-

Loss for disfiguration 10, 000/-

Loss of studies 1, 000/- Nil

Continuing and permanent disability 15, 000/- 15, 000/-

Transport expenses 300/- 200/-

Damage to clothing 50/- Nil

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(The total appears to be only Rs. 35, 000/- )

10. Ext. A 4 is the copy of the wound certificate relating to the claimant. It shows the right upper limp was wholly crushed 2 centimetres below the shoulder. The upper control incisors and cavin teeth upper were loose.

She had an abrasion over the right side of the face and lacerated injury on the right side of the face exposing the mandible. Her father, examined as P.W.1, deposed that she was treated as an in-patient for 20 days in the District Hospital, Trichur and thereafter as an outpatient. Ext. A1 would show that she was to be treated for about two months. When P.W. 1 was examined, the claimant was present before the Tribunal. P.W. 1 deposed that her right arm had to be amputated and the bone which was cut is growing. The Tribunal noticed this. P.W.1 further deposed that further surgery would be necessary to remove this growth. He also deposed that his daughter could not attend school for the rest of the year and lost one year. She lost two teeth and suffered some minor injuries on the face. Undoubtedly she must have suffered a great deal of mental agony and physical pain and her person has become disfigured. Her marriage prospects have diminished. The injuries in the very nature of things would cause considerable loss of amenities and enjoyment of life. There is a fairly high degree of continuing and permanent disability. Having regard to all these circumstances we are of opinion that the Tribunal was not justified in not awarding any compensation for loss of amenities of life and other similar heads, loss of one scholastic year and the amounts awarded under the heads of medical and other related expenses, loss of expectation of life, pain and suffering loss of marriage prospects and disfiguration are too low. Having regard to all these circumstances and the very serious and grave nature of the impact the injuries have on this eleven-year-old claimant, we fix a global amount of Rs. 84, 350/- as fair and reasonable compensation.

11. In the result, we modify the award passed by the Tribunal and hold the driver and owner of the lorry jointly and severally liable to pay compensation of Rs. 84v350/- to the claimant together with interest at six percent from per annum from the date of petition till realisation and per annum from the date of petition till realisation and proportionate costs and further direct the insurer to pay the aforesaid amount. Out of the amount to be paid. Rs. 10, 350/- with proportionate interest and costs will be paid to the father of the claimant and the balance amount with proportionate interest shall be deposited in a nationalised bank in the name of the minor. The amount can be allowed to be withdrawn only for necessities of the minor such as marriage, higher education, medical treatment etc. The claimant's father shall be allowed to withdraw the interest accruing every year for the expenses of the minor. Both the appeals are allowed in the manner indicated above.