IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 15TH DECEMBER 2009 / 24TH AGRAHAYANA 1931 MACA.No. 761 of 2008() ---------------------- OPMV.815/2003 of MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR .................... APPELLANT/PETITIONER: -------------------------- ANNAMKUTTY,THETTAYIL HOUSE, EDAKUNNU KARA,PADUVAPURAM P.O. BY ADV. SRI.P.V.BABY SRI.A.N.SANTHOSH RESPONDENTS/RESPONDENTS: ---------------------------------- 1. V.V.JINSON,S/O.VARGHESE, VADAKKUMCHERY HOUSE,KAROOR P.O. 2. PRABHAKARAN,KALLINGAPURAM HOUSE, ASHTAMICHIRA P.O,CHALAKUDY VIA. 3. MANAGER,ORIENTAL INSURANCE CO.LTD, CHALAKUDY,POLICY NO.441503/2003/5516. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 15/12/2009 ALONG WITH MACA NO. 830 OF 2008 AND CONNECTED CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R RAMAN & P.R.RAMACHANDRA MENON,JJ. ------------------------- M.A.C.A Nos.761,830, 834, 835,1134, 1250, 1264, 1311, 1318 and 1653 of 2008 -------------------------- Dated this the 15th December 2009 J U D G M E N T P.R RAMAN,J All these appeals arise out of the common award passed in O.P. (MV)Nos.815/2003, 828/2003, 829/2003, 830/03 and 834/2003. M.A.C.A Nos. 761/08, 830/08, 834/08, 835/08 and 1134/08 are filed by the claimants and the other batch of M.A.C.A Nos.1250/08, 1264/08, 1311/08, 1318/08 and 1653/08 are filed by the owners of the vehicle. Common issues arise for consideration in these appeals which have been heard together and therefore they are being disposed of by a common judgment. 2. Parties are referred to in their status as in the Tribunal. 3. All the petitions were filed under Section 166 of the M.V Act. While petitioners in O.P.(MV) Nos 815/03, 828/03 and 830/03 along with deceased in O.P.(MV) Nos.829/03 and 834/03 were travelling in a lorry (in M.A.C.A Nos.761& 830/08 and connected cases 2 connection with the work of employer) bearing Reg. No. KL- 7K 8334 driven by the 2nd respondent and came in a rash and negligent manner without observing the traffic rules through the Aluva-Angamaly N.H. Road from south north direction on 4.4.2003 at about 11 a.m. and when the Mini Lorry reached the place Vappalassery it hit against the back side of a K.S.R.T.C Bus and as a result, the mini lorry turned down and all the petitioners were sustained serious injuries. They were taken to the Little Flower Hospital, Angamaly. Two of them succumbed and the legal representatives of the deceased employees are the petitioners in O.P. No.82903 and 834/03 respectively. The accident took place solely due to the rash and negligent driving of the mini lorry by the 2nd respondent. First respondent is the owner of the vehicle who is vicariously liable for the acts of the 2nd respondent employee. Third respondent is the insurer of the said mini lorry. Hence respondents 1 to 3 are contended to be jointly and severally liable to the pay compensation to the petitioners. M.A.C.A Nos.761& 830/08 and connected cases 3 4. First and 2nd respondent in their joint written statement raised more or less similar pleas. The sum and substance of which is to deny their liability but admitted that the petitioners and deceased were travelling in the mini lorry for loading and unloading work of the 1st respondent but denied the negligence attributed against the 2nd respondent driver. The compensation claimed is highly excessive. The 2nd respondent was having valid licence at the time of accident and the vehicle was duly insured with the 3rd respondent Insurance Company. 5. The 3rd respondent insurer of the vehicle contended that the mini lorry in question belongs to the 1st respondent was validly insured with them to cover the date of accident. But they disputed the allegation of negligence against the 2nd respondent. It is contended that the insured vehicle was made and adapted as goods carrying vehicle and the petitioners and deceased were travelling as gratuitous passengers and hence they are not covered under the policy. The owner of the vehicle who is the insured has willfully violated terms and conditions of the M.A.C.A Nos.761& 830/08 and connected cases 4 permit issued to the vehicle. So they are not liable to indemnify the owner. The policy issued to the vehicle is governed by the Endorsement No.IMT 39 and IMT 37. As per endorsement No.39, the insurer received only Rs.50/- by way of premium to the vehicle and as per the terms and conditions of endorsement, the insurer is not liable to pay any compensation. As per IMT No.37, the insurer has received Rs.75/- only. But since persons carried in the vehicle are gratuitous passengers, they do not come under the explanation given in IMT 37 of endorsement. It is also alleged that the accident was occurred due to the negligence on the part of the driver of the K.S.R.T.C bus and further the compensation claimed is exorbitant. 6. The Tribunal raised three issues for consideration, namely, (1) Whether the accident took place due to the rash and negligence driving of the mini lorry KL- 7/K-8334 by the 2nd respondent; (2) Whether the petitioners are entitled to get any compensation? If so, what is the quantum? and (3) who are liable to pay compensation? M.A.C.A Nos.761& 830/08 and connected cases 5 7. A joint trial was ordered. Evidence was marked in common. Exts.A1 to A21 and Ext.B1 were marked . The petitioner in O.P. 828/2003 was examined as PW1. The Insurance Company was permitted to contest the matter under Section 170 of the M.V Act. 8. After referring to the materials produced on record, namely, Ext.A13 F.I.R, Ext.A6 F.I Statement, Ext.A15 charge sheet and Ext.A16 A.M.V.I report, the Tribunal found that the occurrence of the accident is not disputed and the driver of the mini lorry was to be negligent. The Insurance Company having been permitted to contest the matter under Section 170 of the M.V Act and in the absence of any appeal, the above said finding has become final. Though the owner has preferred five set of appeals against the award, it is only against the finding by the Tribunal absolving the Insurance Company from the liability to indemnify the owner. 9. The Tribunal proceeded to consider the compensation to be awarded to the claimants in each of these cases. Petitioner in O.P. No.815/03 was aged 41 years engaged as loading and unloading worker. Being a loading M.A.C.A Nos.761& 830/08 and connected cases 6 and unloading worker, she was drawing an average monthly income of Rs.3000/-. In the absence of any positive evidence to prove the income of the petitioner as Rs.3000/- pleaded, the Tribunal estimated the income at Rs.2000/-. Ext.A7 wound certificate issued by the Little Flower Hospital, where she was treated as per which she suffered injuries Contusion back of head and Post traumatic vertigo. Ext.A8 are the medical bills. The entire medical expenses for a total amount of Rs.2,978.10 was awarded as claimed. For loss of earning for a period of one month during which she would have taken rest, an amount of Rs.2000/- was awarded. An amount of Rs.500/- was awarded towards transportation expenses. Rs.250-/- was awarded towards damage to clothing. Rs.500/- towards extra nourishment compensation, Rs.500/- towards by standers expenses, considering the minor nature of the injuries suffered Rs.3000/- was awarded towards pain and suffering. An amount of Rs.1000/- was awarded towards loss of amenities. The rest of the claims were rejected. The total amount awarded was Rs.10730/-. M.A.C.A Nos.761& 830/08 and connected cases 7 10. In O.P. No.828/2003, an amount of Rs.29,350/- was awarded under different heads. In O.P No.830/2003, considering the age of the petitioner, her income and other relevant factors and also considering the nature of the injuries suffered, an amount of Rs.20,530/- was awarded. 11. In O.P. 829/03, the claim is by the legal heirs of the deceased Thankamma. The claimants are the husband, son and daughter. The deceased was 42 years old at the time of death. She was also a loading and unloading worker, whose estimated income was found to Rs.2000/- per month. Taking into consideration the postmortem certificate Ext.A14 and considering Ext.A18 and 19 series of medical bills, an amount of Rs.10,920/- was awarded towards medical expenses and adopted a suitable multiplier for the age group of 40-45 and deducting 1/3rd of the income, balance was taken as amount spent for the maintenance of the family as dependency loss. An amount of Rs.2,40,300/- was awarded towards dependency compensation. Compensation was also awarded under other relevant heads. Thus, a total amount of Rs.2,94,470/- was awarded. M.A.C.A Nos.761& 830/08 and connected cases 8 12. O.P. No.834/2003 was preferred by the legal heirs of the deceased Annu Antony. Petitioners are the husband, daughters and the son. The deceased was 48 years old at the time of death who was also a loading and unloading worker. Whose estimated income was fixed to Rs.2000/-. Ext.A10 is the postmortem certificate. Adopting a suitable multiplier for the age group of 45-50 and taking the dependency compensation which deducting 1/3rd of the income fixed, the compensation was worked out and an amount of Rs.2,08,260/- was awarded as dependency loss. Compensation was also awarded towards transportation expenses, pain and suffering, damage to clothing, funeral expenses etc, totalling to Rs.2,51,510/-. 13. Learned counsel appearing for the appellants/claimants in M.A.C.A Nos.761/08,,830/08, 834/08, 835/08 and 1134/08 contended that the compensation awarded is inadequate and seek enhancement under different heads. It is contended that the income estimated is too low and compensation awarded under different heads are also on the lower side. We have carefully gone through M.A.C.A Nos.761& 830/08 and connected cases 9 the award and the materials referred to therein. Except to claim enhancement the appellants were not able to substantiate their claim. 14. Considering the nature of the injuries suffered, the compensation has been worked out under settled principles. Income was estimated correctly in the absence of better evidence. In the case of two petitions preferred by the dependents for compensation of the deceased, dependency compensation was also fixed taking into account the amount of income spent for the family and also adopting the correct multiplier considering the age of the deceased as also that of the claimant. We do not find any error in the matter of applying the principles to be followed in the matter of working out the compensation under different heads. We also find that the petitioners were compensated adequately under different heads and what has been granted is the just compensation. Even on a re-appreciation of the facts and circumstances and the materials on record, we are unable to agree with the appellant's contention claiming for any enhancement. The Tribunal having correctly assessed M.A.C.A Nos.761& 830/08 and connected cases 10 the compensation , we find that another interference is called for. 15. The main contention, however, that was argued before us by both the counsel appearing for the claimants as also the owner of the vehicle (insured) is that the Insurance Company ought not to have been absolved from the liability. There is no dispute that the vehicle in question is covered by a valid policy of insurance. But according to the insurer, the petitioners and deceased were gratuitous passengers and so the insurance company is not liable to indemnify the owner as per the policy conditions. 16. PW1 was the petitioner in O.P.828/2003 who deposed that while hey were travelling in a tempo van for loading and unloading of sand and they were called for work to the work site but on reaching the work site, they were told that there was no work on that day. Hence they were returning to their home by the same vehicle in which they travelled to the work site. But it is admitted that the mini lorry is a goods carriage vehicle. Altogether, there were 8 persons travelled in the mini lorry, all of them sustained M.A.C.A Nos.761& 830/08 and connected cases 11 injuries. Ext.P1 is the policy of insurance. 17. According to the counsel appearing for the Insurance Company, the policy conditions more particularly IMT No.37 and 39 as per which they have received only Rs.75/- and Rs.50/- under the relevant clauses as stated above and the passengers do not come under the explanation given in IMT 37 and they are gratuitous passengers. The Tribunal except to reiterate the contentions of the Insurance Company did not render any finding with reference to the policy conditions as to whether the policy condition did in fact absolve from indemnifying the owner. We have perused the policy made available by the counsel appearing for the claimants. We find the basic liability is shown as Rs.3280/- and non-fare passengers an amount of Rs.75/-, P.A Rs.100/-, legal liability employee Rs.50/-. Thus a total amount of Rs.3505/- was paid by way of insurance premium besides 5% service tax applicable. There is a column "subject to endorsements" against which IMT No. 37 and 39 are the clauses so endorsed. Clause 37 is under the caption the Legal Liability to Non-fare Paying M.A.C.A Nos.761& 830/08 and connected cases 12 Passengers other than Statutory Liability except the Fatal Accidents Act 1855. It also shows that the additional premium of Rs.75/- was paid and in consideration of "notwithstanding anything contained in Section II, it is hereby understood and agree that the company will indemnify the insured against his legal liability other than the liability under the statute except the Fatal Accident Act, 1855 in respect of death of or bodily injury to any employee of the with in named insured who is not a workman within the meaning of the Workman's Compensation Act prior to the date of this endorsement and not being carried for hire or reward". 18. Clause 39 is under the caption "Legal Liability to Persons Employed in Connection with the Operation and/or maintaining and/or loading and unloading of Motor Vehicles for Goods Vehicle". It reads that in consideration of payment of Rs.50/-, it was agreed that notwithstanding anything contained herein to the contrary the insurer shall indemnify the insured against his legal liability under the Workman's Compensation Act, 1855. The rest of the M.A.C.A Nos.761& 830/08 and connected cases 13 clauses may not be relevant. But there is a proviso thereunder as per clause 4 of IMT 39. 19. It is contended that the policy conditions as mentioned above clearly stipulates that on the amount of premium of Rs.75/- and Rs.50/- respectively having been paid towards the loading and unloading workers attached to the insured are thus covered under the policy of insurance. According to us, more than the premium amount paid what has to be looked into is the clause as a whole contained in the policy of insurance as to ascertain whether there arises the liability to indemnify the owner in the case of any injury or death occurs or occurred to any one of the loading and unloading worker under the policy of insurance so issued. The amount of premium is something which is subject to variation from time to time. No oral evidence or other documentary evidence is adduced other than to produce the policy. 20. According to the counsel appearing for claimants and the owner, since they are employees employed by the employer, namely, the owner of the vehicle M.A.C.A Nos.761& 830/08 and connected cases 14 and since the accident occurred while they were working in the course of employment and as such even statutorily the insurer is liable to indemnify the owner under Section 147 of the M.V Act. But the Tribunal has not adverted to any of these contentions. 21. We may observe that though the case was adjourned on two occasions so as to enable the insurer to place on record the proposal, if any, made at the time of issuing the policy, which may throw some light to appreciate the contention on either side, they did not produce the same. However, in the circumstances, we are of the view that it is still open for them to do so if they are so advised and produce such additional materials which may have a bearing in interpreting the provisions contained in the policy of insurance. In the absence of a finding entered into by the Tribunal adverting to the contention as raised by the parties and after referring to the materials and after referring to the relevant policy conditions, the finding of the Tribunal absolving the insurer is not sustainable as the finding is not supported by reasons and therefore the matter requires M.A.C.A Nos.761& 830/08 and connected cases 15 reconsideration. We are not expressing any opinion either way on the interpretation of the policy conditions since both sides could place additional materials, if any, enabling them to report their case. The matter is directed to be reconsidered and finding absolving the Insurance Company to indemnify the owner is set aside. The compensation as fixed by the Tribunal has become final as we have already confirmed the award relating to the compensation awarded in each of these cases. 22. In the result, appeals are allowed in part for the limited purpose of considering whether the insurer is liable to indemnify the owner and whether they are jointly and severally liable to pay the amount as per the Award. Parties shall appear before the Tribunal on 6.3.2010. P.R RAMAN,JUDGE P.R.RAMACHANDRA MENON, JUDGE ma M.A.C.A Nos.761& 830/08 and connected cases 16 M.A.C.A Nos.761& 830/08 and connected cases 17 M.A.C.A Nos.761& 830/08 and connected cases 18