IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER & THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI MONDAY, THE 17TH MAY 2010 / 27TH VAISAKHA 1932 MACA.No. 1496 of 2007() ----------------------- OPMV.603/2002 of MOTOR ACCIDENT CLAIMS TRIBUNAL, THALASSERY .................... APPELLANT/PETITIONER ---------------------------------- K.V.RATHEESH KUMAR, S/O. RAGHAVAN, THIRUVOTH HOUSE, THOKKILANGADI, KUTHUPARAMBA AMSOM, NARAVOOR DESOM, THALASSERY TALUK, P.O.KUTHUPARAMBA, KANNUR DISTRICT. BY ADV. SRI.GRASHIOUS KURIAKOSE RESPONDENT(S): RESPONDENT NO.3 ------------------------------- THE NEW INDIA ASSURANCE CO. LTD., MUNICIPAL T.B. SHOPPING COMPLEX, M.G.ROAD, THALASSERY. ADV. SMT.ANITHA M.N. (EKM) FOR R1 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 17/05/2010 ALONG WITH MACA NO. 1870 OF 2007, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K. BASHEER & P.Q. BARKATH ALI, JJ. ------------------------------------------------------ M.A.C.A. 1496 & 1870 of 2007 ------------------------------------------------------ Dated: MAY 17, 2010 JUDGMENT Barkath Ali, J. Both these appeals under sec.173 of the Motor Vehicles Act arise from the judgment and award of the Motor Accidents Claims Tribunal, Thalassery, in OP(MV) 603/2002 dated February 16, 2007, awarding a compensation of Rs.1,03,100/- for the loss caused to the claimant on account of the injuries sustained in a motor accident. M.A.C.A. 1496 of 2007 is by the claimant while M.A.C.A. 1870 of 2007 is by the 1st respondent, the owner of the vehicle involved in the accident. 2. The facts leading to these appeals in brief are these: The claimant was aged 23 and was working as an artist in M/s. Lucos Graphics, Kozhikode, earning Rs.4000/- per month. On July 29, 2001 in the morning at about 11.30 the claimant was pillion riding on the motorcycle bearing registration No.KL.13/F 6215 from Kuthuparamba to Thalassery and when he reached at Eranholi - Chungam, another motorcycle bearing registration No. KL.10/A.1597 came at a high speed from the opposite side and dashed against the motorcycle of the claimant. The claimant sustained severe injuries. According to the claimant the accident occurred due to the negligence on the part of M.A.C.A. 1496 & 1870 of 2007 2 the 1st respondent, rider of the offending motorcycle bearing registration No. KL.10/A.1597. The 1st respondent as the agreement owner-cum-rider, the 2nd respondent as its registered owner and the 3rd respondent as the insurer of the offending motorcycle are jointly and severally liable to pay compensation to the claimant. The claimant claimed a compensation of Rs.5,94,000/-. 3. Respondent No. 1, the rider of the offending motorcycle bearing registration No. KL.10/A.1597 who is also the agreement owner of the said vehicle, filed a written statement admitting the accident and further contending that the 2nd respondent is an unnecessary party in this petition as the 2nd respondent sold the vehicle to the 1st respondent. Respondent No. 1 further contended that the the accident occurred due to the negligence of the rider of the other motorcycle. 4. The 2nd respondent, the registered owner of the offending motorcycle remained absent and he was set ex parte by the Tribunal. The 3rd respondent, insurer of the offending motorcycle, filed a written statement admitting the policy. 5. PWs.1 and 2 were examined and Exts.A1 to A28 were marked on the side of the claimant before the Tribunal. On the side of the contesting respondents Exts.B1 to B3 were marked. On an M.A.C.A. 1496 & 1870 of 2007 3 appreciation of evidence the Tribunal awarded a compensation of Rs.1,03,100/- with interest at 7% per annum from the date of petition till realisation. The Tribunal held that as the transfer of the vehicle by the 2nd respondent to the 1st respondent was not informed to the insurance company, there was violation of the conditions of the policy and that therefore the 3rd respondent, Insurance Company, can realise the said amount from the 1st respondent. The claimant has filed M.A.C.A. 1496 of 2007challenging the quantum of compensation awarded by the Tribunal. The 1st respondent, the agreement owner of the offending vehicle, has filed M.A.C.A. 1870 of 2007 challenging the finding of the Tribunal permitting the 3rd respondent to recover the compensation amount from him. 6. Heard the counsel for the appellants in both the appeals and the counsel for the Insurance Company. 7. The accident is not disputed. The finding of the Tribunal that the accident occurred due to the negligence on the part of the 1st respondent, rider of the offending motorcycle bearing registration No.KL.10/A.1597, is not challenged in these appeals. The main points which arise for consideration in these appeals are whether the finding of the Tribunal that the 3rd respondent can recover the compensation amount from he 1st respondent, agreement owner of the M.A.C.A. 1496 & 1870 of 2007 4 offending motorcycle, as there was violation of the conditions of the policy can be sustained and that whether the claimant is entitled to any enhanced compensation. 8. We shall first consider whether the claimant is entitled to any enhanced compensation. The claimant sustained the following injuries as revealed from Ext.A3, copy of the wound certificate, issued from the Indira Gandhi Co-operative Hospital, Thalassery:- 1. 'L' shaped lacerated wound 5 x 5 cms. over the posterior aspect of upper 3rd of right leg. 2. Lacertated wound 2 x 2 cms. anterior portion of upper 3rd of right leg. 3. Artery pulsation not felt. Ext.A6 series, A16 and A24 are the discharge cards issued from the Dhanalakshmi Hospital, Kannur wherein it is noted that the claimant has sustained Type III compound comminuted fracture middle 3rd of both bones of right leg and crush injury right leg with skin loss extending to soleus muscle. Skin grafting and external fixation were done. He was admitted in the hospital several times and underwent extensive treatment which is extracted by the Tribunal in paragraph 9 of the judgment. 9. Taking into consideration all these aspects, the Tribunal awarded a total compensation of Rs.1,03,100/-. The break up of the M.A.C.A. 1496 & 1870 of 2007 5 compensation amount awarded is as under:- Loss of earning - Rs.6,000/- transportation expenses - 3,000/- Medical expenses - 58,650/- Bystander's expenses - 6,700/- extra nourishment - 1,500/- pain and sufferings - 15,000/- Compensation for permanent disability - 12,440/- --------------- Total - 1,03,090/- rounded to - 1,03,100/- ============ 10. Counsel for the appellant/claimant sought enhancement of the compensation awarded for the disability caused and for pain and suffering endured by the claimant. Ext.A28 disability certificate issued by Dr.Narayana Prasad, Dhanalakshmi Hospital, Kannur, examined as PW.2 before the Tribunal, shows that the claimant has the following disabilities:- “1½ inches shortening of his right tibial component and 10 degree inward bowing of his right tibia in the middle 3rd.” The disability of the claimant is assessed as 24% considering the particular limb and 7% considering the body as a whole. He was M.A.C.A. 1496 & 1870 of 2007 6 aged only 23 and was working as an artist in M/s. Lucos Graphics, Kozhikode. Ext.A4 is his employment-cum-salary certificate. The Tribunal took the monthly income of the claimant as Rs.2000/- and took his percentage of disability as 3% and adopting a multiplier of 17 awarded Rs.12,240/- for the disability caused. In the light of the certificate Ext.A4, we feel that his monthly income can be reasonably fixed at Rs.2500/-. The percentage of disability assessed by PW.2 in Ext.A28 appears to be reasonable. The multiplier adopted by the Tribunal as 17 is not seriously challenged. Thus calculated, for the disability caused the claimant is entitled to a compensation of Rs.35,700/- (7% of 2500 x 12 x 17). Thus on this count the claimant is entitled to an additional compensation of Rs.23,260/-. 11. For the pain and suffering endured by the claimant, the Tribunal awarded a compensation of Rs.15,000/- which appears to be very low. Taking into consideration the nature of the injuries sustained and the period of treatment the claimant has undergone, we feel that a compensation of Rs.25,000/- would be reasonable on this count. Thus on this count he is entitled to an additional compensation of Rs.10,000/-. As regards the compensation awarded under other heads, we feel the same to be reasonable and therefore we are not disturbing the same. M.A.C.A. 1496 & 1870 of 2007 7 12. The next question for consideration is whether the finding of the Tribunal that there was violation of the condition of the insurance policy as the 2nd respondent did not inform the Insurance Company about the transfer of the vehicle and allowing the 3rd respondent Insurance Company to recover the compensation amount from the 1st respondent can be sustained. For the following reasons we are inclined to hold that the above direction of the Tribunal cannot be sustained: Sec.157 of the Motor Vehicles Act clearly provides that there will be a deemed transfer of the policy where a person in whose favour certificate of insurance has been issued, transfers to another person the ownership of the motor vehicle. Therefore in the present case also there will be a deemed transfer of the policy in favour of the 1st respondent. That being so, the 3rd respondent Insurance Company, is bound to indemnify the1st respondent the risk covered by the policy. Therefore the finding of the Tribunal that there was violation of the policy in not intimating the transfer in favour of the1st respondent to the Insurance Company and therefore the 3rd respondent can recover the compensation amount from the 1st respondent cannot be sustained. 13. In the result, both these MACAs. are disposed of as found below:- M.A.C.A. 1496 & 1870 of 2007 8 MACA 1870/2007 is allowed. The direction of the Tribunal allowing the 3rd respondent Insurance Company to recover the compensation amount from the 1st respondent is set aside. The 3rd respondent Insurance Company is bound to indemnify the 1st respondent. The claimant is entitled to an additional compensation of Rs.33,260/- and proportionate cost. He is entitled to interest @ 9% per annum from the date of petition till realisation and proportionate cost. The 3rd respondent being the insurer of the offending vehicle shall deposit the amount before the Tribunal within two months from the date of receipt of a copy of this judgment with notice to the claimant. The award of the Tribunal is modified to the above extent. The appeals are disposed of as found above. A.K. BASHEER, JUDGE P.Q. BARKATH ALI, JUDGE mt/-