IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 3RD APRIL 2008 / 14TH CHAITHRA 1930 MFA.No. 1236 of 2000() ---------------------- OPMV.306/1997 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THIRUVANANTHAPURAM .................... APPELLANT: 3RD RESPONDENT: ----------- THE ORIENTAL INSURANCE CO. LTD., NOW REPRESENTED BY ITS DEPUTY MANAGER, REGIONAL OFFICE, METRO PALACE, KOCHI-18 BY ADV. SRI.MATHEWS JACOB RESPONDENTS: PETITIONER & RESPONDENTS 1 AND 2: ------------- 1. J. SREEDHARAN PILLAI, S/O. JANARDHANA PILLAI, MUDUMBILMELE VEEDU, EDAICKODE, NEMOM PO, THIRUVANANTHAPURAM 2. ASHOK KUMAR PILLAI, S/O.PURUSHOTHAMAN PILLAI, MELEKUTTIKKATTIL VEEDU, NEAR KADUVAYILPALLY, MANAMBOOR, ALAMCODE, ATTINGAL. 3. PARAMESWARAN NAIR, S/O.NARAYANAN PILLAI, KUNCHU VEEDU, NEAR MAHADEVA TEMPLE, VADAKKEMULLOOR ANYARA P.O., THIRUVANANTHAPURAM. BY ADV. SRI.B.JAYASURYA SRI.P.PUSHPARAJAN THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 03/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.M.P. No. 3126/2001 in M.F.A. No. 1236/2000 Closed. Sd/-J.B. Koshy, Judge. 3rd April,2008 Sd/-K. Hema, Judge. mn. J.B.Koshy & K. Hema, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - M. F.A.No. 1236 of 2000 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of April, 2008 JUDGMENT Koshy, J. Insurance company challenges the award of the Tribunal on two grounds. 2. Firstly, it is contended that there was a violation of policy condition, as the driver of the vehicle had no driving licence. It has come out in evidence that the 2nd respondent driver of the vehicle had valid driving licence before the accident and it was renewed on 26-10-1996 and on 20-10-1996, the date of the accident, it was not renewed. No evidence was adduced by the Insurance Company to prove that the absence of the driving licence was the cause of the accident and insured has failed to take care in entrusting the vehicle to the driver. In this connection we refer a Full Bench decision of this Court in Oriental Insurance Co. Ltd. V. Paulose (2004(1) KLT 8) wherein it was held that merely because driving licence was not renewed on the date of the accident, liability of the Insurance Company cannot be absolved. In National Insurance Company Ltd. V. Swaran Singh and others (AIR 2004 SC 1531) Honourable Supreme Court held that mere absence or invalid licence of the driver would not exclude MFA 1236/2000 -2- insurance cover unless it is proved that the insured was negligent or failed to exercise a reasonable care in the matter of fulfilling the conditions of the policy or absence of driving licence has contributed to the cause of accident (see para 105). Here the driver is an experienced driver, but there was a short delay in renewing the licence. The Tribunal clearly found that Insurance Company was not able to prove the above two conditions. 3. Secondly, it is contended that the amount awarded was very high. The claimant/injured was conducting a teashop. The Tribunal has taken Rs.3,000/- per month as his monthly income. Assessment of monthly income of Rs.3,000/- per month for a person, who was conducting his own business, is not excessive. The Tribunal has assessed 30% disability considering the assessment of orthopaedist and neurosurgeon. We see no ground to change the same. It is submitted that 13 was taken as the multiplier. He was aged 50 at the time of the accident. Under the Second Schedule 13 is the multiplier between the age 45 – 50 and 11 is the multiplier between the age 50 – 55. Second Schedule need be taken as a guidance. Considering the facts and circumstances of the case, we find no reason to interfere with the multiplier taken by the Tribunal. Taking 13 as the multiplier, for 30% disability the Tribunal granted Rs.1,40,000/- for permanent disability. Rs.75,000/- was also granted towards loss of earning MFA 1236/2000 -3- power. Rs.1,40,000/- granted for permanent disability is granted for loss of earning power and after effect of the same due to the disability. Therefore, compensation granted for loss of earning power has to be deducted from the total compensation granted. The Tribunal has granted Rs.30,000/- towards loss of amenities and Rs.25,000/- for pain and suffering, apart from the reimbursement of medical expenses and other expenses incurred by him. Thereafter, again for mental shock and loss of expectancy in life Rs.30,000/- was granted. It is contended that for pain and suffering Rs.25,000/- was granted and again compensation of Rs.30,000/- was granted for mental shock and expectancy of life. We deduct Rs.25,000/- awarded under these two counts as compensation under these two counts can be clubbed together. 4. In the circumstances, instead of Rs.3,57,900/-, compensation will be payable only Rs.2,57,900/-. Considering the rate of interest passed in 1999, we find no reason to interfere with the same. Accordingly, the appeal is partly allowed. J.B. Koshy, Judge K. Hema, Judge mn. MFA 1236/2000 -4- J.B.Koshy & K. Hema, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - M. F.A.No. 1236 of 2000 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - JUDGMENT 3rd day of April, 2008