IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 4TH AUGUST 2009 / 13TH SRAVANA 1931 MACA.No. 168 of 2007() ------------------------------- (AGAINST THE AWARD DATED 16.9.2006 IN OPMV.3150/2001 of MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE ) .................... APPELLANT(S): PETITIONER. ----------------------------------------- K.SHOUKATHALI, AGED 51 YEARS, S/O.KOYASSAN, EDOLIPALI HOUSE, P.O.CHENNAMANGALLOOR, MUKKAM VIA, CALICUT DISTRICT. BY ADV. SRI.THOMAS ANTONY RESPONDENT(S): RESPONDENTS. --------------------------------------------------- 1. M.ASADULLA, AGED 26 YEARS, S/O.MOHAMED, CHTTIYANTHODI HOUSE, WEST CHENNAMANGALLOOR, MUKKOM, CALICUT, OWNER. 2. ABDU NASIR, AGED 26 YEARS, S/O.MOHAMMED, AYIPPOTTAMMAL HOUSE, CHENNAMANGALLOOR P.O., MUKKOM, CALICUT, DRIVER. 3. UNITED INDIA INSURANCE CO LTD., WHITE LINES BUILDING, KALLAI ROAD, CALICUT. R3 BY ADV. SRI.RAJESH THOMAS. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 04/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ------------------------------------------------------ M.A.C.A.No.168 of 2007 ---------------------------------------------- Dated, this the 4th day of August, 2009 J U D G M E N T K.M.Joseph, J. Appellant is the claimant in a petition filed under Section 166 of the Motor Vehicles Act. Aggrieved by the quantum of compensation awarded by the Tribunal, and also exonerating the insurance company from liability this appeal is filed. 2. We heard the learned counsel for the appellant and also the learned counsel appearing on behalf of the insurance company. 3. Though served there is no appearance for respondents 1 and 2. Learned counsel for the appellant would urge that the Tribunal has erred in awarding compensation for loss of earning only for one month. An amount of Rs.8,849/- is awarded by the Tribunal. Apparently, this is on the basis of A4 salary certificate produced before the Tribunal. Learned counsel for the appellant refers to the certificate. It would show that the appellant was not paid salary for November and December, 2001 as he was on leave MACA No.168/2007 -2- without salary during these two months. According to the appellant he was in hospital for three days and thereafter he was in plaster for two months. He further contends that Rs.12,000/- awarded towards pain and suffering is inadequate. He would further contend that no amount is awarded towards disability. He finally contends that the Tribunal has erred in not calling upon the insurance company to pay the amount. The learned counsel for the would submit that the matter is squarely covered by the decision of the Apex Court in National Insurance Co.Ltd. vs. Swaran Singh (2004 (1) KLT 781 (SC). He further buttresses his argument with reference to the decision in National Insurance Co. Ltd. v. Geeta Bhat {2008 (2) KLT 1001 (SC)}. There the Supreme Court held as follows: “The conceptual difference between third-party right and own damage cases has to be kept in view. Initially, the burden is on the insurer to prove that the licence was a fake one. Once it is established the natural consequences have to flow. In view of the above analysis the following situations emerge: (1) The decision in Swaran Singh case 2004 (1) KLT 781 (SC) has no application to cases other than third-party risks. (2). Where originally the licence was a fake one, renewal cannot cure the cure the inherent fatality. (3). In case of third-party risks the insurer has to MACA No.168/2007 -3- indemnify the amount, and if so advised, to recover the same from the insured. (4) The concept of purposive interpretation has no application to cases relatable to S.149 of the Act. Thus, whereas in a case where a third party has raised a claim, Swaran Sing (supra) would apply, in a claim made by the owner of the vehicle or other passengers of a vehicle, it would not. We would, therefore, assume that the licence possessed by the 6th respondent, Gopal Sing was a fake one. Only because the same was fake, the same, having regard to the settled legal position, as noticed hereinbefore, would not absolve the insurer to reimburse the owner of a vehicle in respect of the amount awarded in favour of a third party by the Tribunal in exercise of its jurisdiction under S.166 of the Motor Vehicles Act, 1988.” 4. Per contra, learned counsel for the insurance company submits that no increase in quantum of compensation is warranted. He would further contend that AMI report shows that the driving licence of the second respondent driver is not produced for verification. AMI report is not even produced or marked either by the appellant or by the respondents. Respondents 1 and 2 did not contest the matter. It is clear that the 3rd respondent did not take any steps as such seeking production of licence. No doubt, it has taken a contention that the 2nd respondent does not have licence. Apart from taking such contention it has not MACA No.168/2007 -4- proceeded to discharge the burden. In view of the decision in Swaran Singh's case (supra) we are of the view that the appellant is justified in contending that the Tribunal ought to have ordered compensation to be paid by the 3rd respondent. Apparently this is a case where the insurance company has not discharged its burden in any manner. This cannot be said to be a case where violation of policy conditions is admitted. It is not a case where absence of licence is admitted. There is no material on record which will show that there is violation of policy conditions. Therefore, it is incumbent on the insurance company to discharge burden if it is to be conferred with recovery rights. In the total absence of any evidence showing breach of Section 149 we are of the view that the appellant is entitled to recover the amount of compensation from the insurance company without the company being conferred with recovery rights. 5. The further question is with regard to enhancement of compensation. In view of the certificate we are of the view that the appellant can be given a further compensation of Rs.8,849/- towards loss of earning for two MACA No.168/2007 -5- months instead of one month. As far as pain and suffering is concerned having regard to the period of hospitalization (3 days) and the case of two months being in plaster we feel that award of Rs.12,000/- cannot be said to be unjust. There is no evidence to award any compensation towards disability as the appellant has not produced any certificate. Accordingly, the appeal is allowed in part and the appellant is allowed to realise a further sum of Rs.8,849/- with interest at 7.5 percent from the date of petition till realisation from respondents 1 to 3. Appellant is also entitled to realise the amount already awarded by the Tribunal from the third respondent. (K.M.JOSEPH) JUDGE. (M.L.JOSEPH FRANCIS) JUDGE. MS