High Court Kerala High Court

Annamkutty vs V.V.Jinson on 15 December, 2009

Kerala High Court
Annamkutty vs V.V.Jinson on 15 December, 2009
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

MACA.No. 761 of 2008()


1. ANNAMKUTTY,THETTAYIL HOUSE,
                      ...  Petitioner

                        Vs



1. V.V.JINSON,S/O.VARGHESE,
                       ...       Respondent

2. PRABHAKARAN,KALLINGAPURAM HOUSE,

3. MANAGER,ORIENTAL INSURANCE CO.LTD,

                For Petitioner  :SRI.P.V.BABY

                For Respondent  : No Appearance

The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice P.R.RAMACHANDRA MENON

 Dated :15/12/2009

 O R D E R
      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

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