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.
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M.A.C.A Nos.761,830, 834, 835,1134, 1250,
1264, 1311, 1318 and 1653 of 2008
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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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