IN THE HIGH COURT OF KERALA AT ERNAKULAM
MACA.No. 168 of 2007()
1. K.SHOUKATHALI, AGED 51 YEARS,
... Petitioner
Vs
1. M.ASADULLA, AGED 26 YEARS,
... Respondent
2. ABDU NASIR, AGED 26 YEARS,
3. UNITED INDIA INSURANCE CO LTD.,
For Petitioner :SRI.THOMAS ANTONY
For Respondent :SRI.RAJESH THOMAS
The Hon'ble MR. Justice K.M.JOSEPH
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS
Dated :04/08/2009
O R D E R
K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ.
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M.A.C.A.No.168 of 2007
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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 toMACA 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