{"id":97237,"date":"2009-12-15T00:00:00","date_gmt":"2009-12-14T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/annamkutty-vs-v-v-jinson-on-15-december-2009"},"modified":"2014-10-05T12:00:20","modified_gmt":"2014-10-05T06:30:20","slug":"annamkutty-vs-v-v-jinson-on-15-december-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/annamkutty-vs-v-v-jinson-on-15-december-2009","title":{"rendered":"Annamkutty vs V.V.Jinson on 15 December, 2009"},"content":{"rendered":"
Kerala High Court<\/div>\n
Annamkutty vs V.V.Jinson on 15 December, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nMACA.No. 761 of 2008()\n\n\n1. ANNAMKUTTY,THETTAYIL HOUSE,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. V.V.JINSON,S\/O.VARGHESE,\n                       ...       Respondent\n\n2. PRABHAKARAN,KALLINGAPURAM HOUSE,\n\n3. MANAGER,ORIENTAL INSURANCE CO.LTD,\n\n                For Petitioner  :SRI.P.V.BABY\n\n                For Respondent  : No Appearance\n\nThe Hon'ble MR. Justice P.R.RAMAN\nThe Hon'ble MR. Justice P.R.RAMACHANDRA MENON\n\n Dated :15\/12\/2009\n\n O R D E R\n      P.R RAMAN & P.R.RAMACHANDRA MENON,JJ.\n                      -------------------------\n        M.A.C.A Nos.761,830, 834, 835,1134, 1250,\n             1264, 1311, 1318 and 1653 of 2008\n                     --------------------------\n             Dated this the 15th December 2009\n\n\n                       J U D G M E N T\n<\/pre>\n
P.R RAMAN,J<\/p>\n
     All these appeals arise out of the common award<\/p>\n
passed in O.P. (MV)Nos.815\/2003, 828\/2003, 829\/2003,<\/p>\n
830\/03 and 834\/2003. M.A.C.A Nos. 761\/08, 830\/08,<\/p>\n
834\/08, 835\/08 and 1134\/08 are filed by the claimants<\/p>\n
and the other batch of M.A.C.A Nos.1250\/08, 1264\/08,<\/p>\n
1311\/08, 1318\/08 and 1653\/08 are filed by the owners of<\/p>\n
the vehicle. Common issues arise for consideration in these<\/p>\n
appeals which have been heard together and therefore<\/p>\n
they are being disposed of by a common judgment.<\/p>\n
     2.   Parties are referred to in their status as in the<\/p>\n
Tribunal.\n<\/p>\n
     3.   All the petitions were filed under Section 166 of<\/p>\n
the M.V Act. While petitioners in O.P.(MV) Nos 815\/03,<\/p>\n
828\/03 and 830\/03 along with deceased in O.P.(MV)<\/p>\n
Nos.829\/03 and 834\/03 were travelling in a lorry (in<\/p>\n
M.A.C.A Nos.761& 830\/08 and connected cases
\n                                       2<\/span><\/p>\n
connection with the work of employer) bearing Reg. No. KL-<\/p>\n
7K 8334 driven by the 2nd respondent and came in a rash<\/p>\n
and negligent manner without observing the traffic rules<\/p>\n
through the Aluva-Angamaly N.H. Road from south north<\/p>\n
direction on 4.4.2003 at about 11 a.m. and when the Mini<\/p>\n
Lorry reached the place Vappalassery it hit against the back<\/p>\n
side of a K.S.R.T.C Bus and as a result, the mini lorry turned<\/p>\n
down and all the petitioners were sustained serious injuries.<\/p>\n
They were taken to the Little Flower Hospital, Angamaly.<\/p>\n
Two of them succumbed and the legal representatives of the<\/p>\n
deceased employees are the petitioners in O.P. No.82903<\/p>\n
and 834\/03 respectively. The accident took place solely due<\/p>\n
to the rash and negligent driving of the mini lorry by the 2nd<\/p>\n
respondent. First respondent is the owner of the vehicle who<\/p>\n
is vicariously liable for the acts of the 2nd respondent<\/p>\n
employee. Third respondent is the insurer of the said mini<\/p>\n
lorry. Hence respondents 1 to 3 are contended to be jointly<\/p>\n
and severally liable to the pay compensation to the<\/p>\n
petitioners.\n<\/p>\n
M.A.C.A Nos.761& 830\/08 and connected cases
\n                                       3<\/span><\/p>\n
      4.    First and 2nd respondent in their joint written<\/p>\n
statement raised more or less similar pleas. The sum and<\/p>\n
substance of which is to deny their liability but admitted that<\/p>\n
the petitioners and deceased were travelling in the mini<\/p>\n
lorry for loading and unloading work of the 1st respondent<\/p>\n
but denied the negligence attributed against the 2nd<\/p>\n
respondent driver.        The compensation claimed is highly<\/p>\n
excessive.     The 2nd respondent was having         valid licence<\/p>\n
at the time of accident and the vehicle was duly insured<\/p>\n
with the 3rd respondent Insurance Company.<\/p>\n
      5.    The 3rd respondent insurer of the vehicle<\/p>\n
contended that the mini lorry in question belongs to the 1st<\/p>\n
respondent was validly insured with them to cover the date<\/p>\n
of accident. But they disputed the allegation of negligence<\/p>\n
against the 2nd respondent.             It is contended that the<\/p>\n
insured vehicle was made and adapted as goods carrying<\/p>\n
vehicle and the petitioners and deceased were travelling as<\/p>\n
gratuitous     passengers and hence they are not covered<\/p>\n
under the     policy. The owner of the vehicle who is the<\/p>\n
insured has willfully violated terms and conditions of the<\/p>\n
M.A.C.A Nos.761& 830\/08 and connected cases
\n                                       4<\/span><\/p>\n
permit issued to the vehicle. So they are not liable to<\/p>\n
indemnify the owner.          The policy issued to the vehicle is<\/p>\n
governed by the Endorsement No.IMT 39 and IMT 37. As<\/p>\n
per endorsement No.39, the insurer received only Rs.50\/- by<\/p>\n
way of premium to the vehicle and as per the terms and<\/p>\n
conditions of endorsement, the insurer is not liable to pay<\/p>\n
any compensation.         As per IMT No.37, the insurer has<\/p>\n
received Rs.75\/- only.        But since persons carried in the<\/p>\n
vehicle are gratuitous passengers, they do not come under<\/p>\n
the explanation given in IMT 37 of endorsement.         It is also<\/p>\n
alleged that the accident             was occurred due to the<\/p>\n
negligence on the part of the driver of the K.S.R.T.C bus and<\/p>\n
further the compensation claimed is exorbitant.<\/p>\n
      6.    The      Tribunal      raised   three   issues     for<\/p>\n
consideration, namely, (1) Whether the accident took place<\/p>\n
due to the rash and negligence driving of the mini lorry KL-<\/p>\n
7\/K-8334 by the 2nd respondent; (2) Whether the petitioners<\/p>\n
are entitled to get any compensation? If so, what is the<\/p>\n
quantum? and (3) who are liable to pay compensation?<\/p>\n
M.A.C.A Nos.761& 830\/08 and connected cases
\n                                       5<\/span><\/p>\n
      7.    A joint trial was ordered. Evidence was marked<\/p>\n
in common. Exts.A1 to A21 and Ext.B1 were marked . The<\/p>\n
petitioner in O.P. 828\/2003 was examined as PW1.           The<\/p>\n
Insurance Company was permitted to contest the matter<\/p>\n
under Section 170 of the M.V Act.\n<\/p>\n
      8.    After referring to the materials produced on<\/p>\n
record, namely, Ext.A13 F.I.R, Ext.A6 F.I Statement, Ext.A15<\/p>\n
charge sheet and Ext.A16 A.M.V.I report, the Tribunal found<\/p>\n
that the occurrence of the accident is not disputed and the<\/p>\n
driver of the mini lorry was to be negligent. The Insurance<\/p>\n
Company having been permitted to contest the matter under<\/p>\n
Section 170 of the M.V Act and in the absence of any appeal,<\/p>\n
the above said finding has become final. Though the owner<\/p>\n
has preferred five set of appeals against the award, it is only<\/p>\n
against the finding by the Tribunal absolving the Insurance<\/p>\n
Company from the liability to indemnify the owner.<\/p>\n
      9.    The    Tribunal      proceeded   to consider   the<\/p>\n
compensation to be awarded to the claimants in each of<\/p>\n
these cases. Petitioner in O.P. No.815\/03 was aged 41 years<\/p>\n
engaged as loading and unloading worker. Being a loading<\/p>\n
M.A.C.A Nos.761& 830\/08 and connected cases
\n                                       6<\/span><\/p>\n
and unloading worker, she was drawing an average monthly<\/p>\n
income of Rs.3000\/-.          In the absence of   any positive<\/p>\n
evidence to prove the income of the petitioner as Rs.3000\/-<\/p>\n
pleaded, the Tribunal estimated the income at Rs.2000\/-.<\/p>\n
Ext.A7 wound certificate issued by the           Little Flower<\/p>\n
Hospital, where she was treated as per which she suffered<\/p>\n
injuries Contusion back of head and Post traumatic vertigo.<\/p>\n
Ext.A8 are the medical bills. The entire medical expenses<\/p>\n
for a total amount of Rs.2,978.10 was awarded as claimed.<\/p>\n
For loss of earning for a period of one month during which<\/p>\n
she would have taken rest, an amount of Rs.2000\/- was<\/p>\n
awarded.      An amount of Rs.500\/- was awarded towards<\/p>\n
transportation expenses.         Rs.250-\/- was awarded towards<\/p>\n
damage to clothing.        Rs.500\/- towards extra nourishment<\/p>\n
compensation, Rs.500\/- towards by standers expenses,<\/p>\n
considering the minor nature of the injuries suffered<\/p>\n
Rs.3000\/- was awarded towards pain and suffering.          An<\/p>\n
amount of Rs.1000\/- was awarded towards loss of amenities.<\/p>\n
The rest of the claims were rejected.         The total amount<\/p>\n
awarded was Rs.10730\/-.\n<\/p>\n
M.A.C.A Nos.761& 830\/08 and connected cases
\n                                       7<\/span><\/p>\n
      10. In O.P. No.828\/2003, an amount of Rs.29,350\/-<\/p>\n
was awarded under different heads. In O.P No.830\/2003,<\/p>\n
considering the age of the petitioner, her income and other<\/p>\n
relevant factors and also considering the nature of the<\/p>\n
injuries suffered, an amount of Rs.20,530\/- was awarded.<\/p>\n
      11. In O.P. 829\/03, the claim is by the legal heirs of<\/p>\n
the deceased Thankamma. The claimants are the husband,<\/p>\n
son and daughter. The deceased was 42 years old at the<\/p>\n
time of death. She was also a loading and unloading worker,<\/p>\n
whose estimated income was found to Rs.2000\/- per month.<\/p>\n
Taking into consideration the postmortem certificate<\/p>\n
Ext.A14 and considering Ext.A18 and 19 series of medical<\/p>\n
bills, an amount of Rs.10,920\/- was awarded         towards<\/p>\n
medical expenses and adopted a suitable multiplier for the<\/p>\n
age group of 40-45 and deducting 1\/3rd of the       income,<\/p>\n
balance was taken as amount spent for the maintenance of<\/p>\n
the family as dependency loss. An amount of Rs.2,40,300\/-<\/p>\n
was     awarded       towards       dependency compensation.<\/p>\n
Compensation was also awarded under other relevant heads.<\/p>\n
Thus, a total amount of Rs.2,94,470\/- was awarded.<\/p>\n
M.A.C.A Nos.761& 830\/08 and connected cases
\n                                       8<\/span><\/p>\n
      12. O.P. No.834\/2003           was preferred by the legal<\/p>\n
heirs of the deceased Annu Antony.            Petitioners are the<\/p>\n
husband, daughters and the son. The deceased was 48<\/p>\n
years old at the time of death who was also a loading and<\/p>\n
unloading worker. Whose estimated income was fixed to<\/p>\n
Rs.2000\/-. Ext.A10 is the postmortem certificate. Adopting<\/p>\n
a suitable multiplier for the age group of 45-50 and taking<\/p>\n
the dependency compensation which deducting 1\/3rd of the<\/p>\n
income fixed, the compensation was worked out and an<\/p>\n
amount of Rs.2,08,260\/- was awarded as dependency loss.<\/p>\n
Compensation was also awarded towards transportation<\/p>\n
expenses, pain and suffering, damage to clothing, funeral<\/p>\n
expenses etc, totalling to Rs.2,51,510\/-.<\/p>\n
      13. Learned           counsel       appearing    for    the<\/p>\n
appellants\/claimants in M.A.C.A Nos.761\/08,,830\/08, 834\/08,<\/p>\n
835\/08 and 1134\/08 contended that the compensation<\/p>\n
awarded is inadequate and seek enhancement under<\/p>\n
different heads. It is contended that the income estimated is<\/p>\n
too low and compensation awarded under different heads<\/p>\n
are also on the lower side. We have carefully gone through<\/p>\n
M.A.C.A Nos.761& 830\/08 and connected cases
\n                                       9<\/span><\/p>\n
the award and the materials referred to therein. Except to<\/p>\n
claim enhancement the appellants were not able to<\/p>\n
substantiate their claim.\n<\/p>\n
      14. Considering the nature of the injuries suffered,<\/p>\n
the compensation has been worked out under settled<\/p>\n
principles. Income was estimated correctly in the absence<\/p>\n
of better evidence. In the case of two petitions preferred by<\/p>\n
the   dependents      for    compensation    of the  deceased,<\/p>\n
dependency compensation was also fixed taking into account<\/p>\n
the amount of income spent for the family and also adopting<\/p>\n
the correct multiplier considering the age of the deceased as<\/p>\n
also that of the claimant. We do not find any error in the<\/p>\n
matter of applying        the principles to be followed in the<\/p>\n
matter of working out the compensation under different<\/p>\n
heads. We also find that the petitioners were compensated<\/p>\n
adequately under different heads and what has been granted<\/p>\n
is the just compensation. Even on a re-appreciation of the<\/p>\n
facts and circumstances and the materials on record, we are<\/p>\n
unable to agree with the appellant’s contention claiming for<\/p>\n
any enhancement. The Tribunal having correctly assessed<\/p>\n
M.A.C.A Nos.761& 830\/08 and connected cases
\n                                      10<\/span><\/p>\n
the compensation , we find that another interference is<\/p>\n
called for.\n<\/p>\n
      15. The main contention, however, that was argued<\/p>\n
before us by both the counsel appearing for the claimants as<\/p>\n
also the owner of the vehicle (insured) is that the Insurance<\/p>\n
Company ought not to have been absolved from the liability.<\/p>\n
There is no dispute that the vehicle in question is covered by<\/p>\n
a valid policy of insurance. But according to the insurer, the<\/p>\n
petitioners and deceased were gratuitous passengers and so<\/p>\n
the insurance company is not liable to indemnify the owner<\/p>\n
as per the policy conditions.\n<\/p>\n
      16. PW1 was the petitioner in O.P.828\/2003 who<\/p>\n
deposed that while hey were travelling in a tempo van for<\/p>\n
loading and unloading of sand and they were called for work<\/p>\n
to the work site but on reaching the work site, they were<\/p>\n
told that there was no work on that day. Hence they were<\/p>\n
returning to their home by the same vehicle in which they<\/p>\n
travelled to the work site. But it is admitted that the mini<\/p>\n
lorry is a goods carriage vehicle. Altogether, there were 8<\/p>\n
persons travelled in the mini lorry, all of them sustained<\/p>\n
M.A.C.A Nos.761& 830\/08 and connected cases
\n                                      11<\/span><\/p>\n
injuries. Ext.P1 is the policy of insurance.<\/p>\n
      17. According to the counsel appearing for the<\/p>\n
Insurance        Company, the         policy  conditions   more<\/p>\n
particularly IMT No.37 and 39 as per            which they have<\/p>\n
received only Rs.75\/- and Rs.50\/- under the relevant clauses<\/p>\n
as stated above and the passengers do not come under the<\/p>\n
explanation given in IMT 37              and they are gratuitous<\/p>\n
passengers.        The Tribunal except to reiterate the<\/p>\n
contentions of the Insurance Company did not render any<\/p>\n
finding with reference to the policy conditions as to whether<\/p>\n
the policy condition did in fact absolve from indemnifying<\/p>\n
the owner. We have perused the policy made available by<\/p>\n
the counsel appearing for the claimants. We find the basic<\/p>\n
liability is shown as Rs.3280\/- and non-fare passengers an<\/p>\n
amount of Rs.75\/-, P.A Rs.100\/-, legal liability employee<\/p>\n
Rs.50\/-.   Thus a total amount of Rs.3505\/- was paid by way<\/p>\n
of insurance premium besides 5% service tax applicable.<\/p>\n
There is a column “subject to endorsements” against which<\/p>\n
IMT No. 37 and 39 are the clauses so endorsed.         Clause 37<\/p>\n
is under the caption the Legal Liability to Non-fare Paying<\/p>\n
M.A.C.A Nos.761& 830\/08 and connected cases
\n                                      12<\/span><\/p>\n
Passengers other than Statutory Liability except the Fatal<\/p>\n
Accidents Act 1855.         It   also shows that the additional<\/p>\n
premium of Rs.75\/- was paid and in consideration of<\/p>\n
“notwithstanding anything contained           in Section II, it is<\/p>\n
hereby understood and agree that the company will<\/p>\n
indemnify the insured against his legal liability other than<\/p>\n
the liability under the statute except the Fatal Accident<\/p>\n
Act, 1855 in respect of death of or bodily injury to any<\/p>\n
employee of the with in named insured who is not a<\/p>\n
workman       within     the    meaning     of  the   Workman’s<\/p>\n
Compensation Act prior to the date of this endorsement and<\/p>\n
not being carried for hire or reward”.\n<\/p>\n
      18. Clause 39 is under the caption “Legal Liability to<\/p>\n
Persons Employed in Connection with the Operation and\/or<\/p>\n
maintaining and\/or loading and unloading of Motor Vehicles<\/p>\n
for Goods Vehicle”.         It reads that    in consideration of<\/p>\n
payment of Rs.50\/-, it was agreed that notwithstanding<\/p>\n
anything contained herein to the contrary the insurer shall<\/p>\n
indemnify the insured against his legal liability under the<\/p>\n
Workman’s Compensation Act, 1855.              The rest of    the<\/p>\n
M.A.C.A Nos.761& 830\/08 and connected cases
\n                                      13<\/span><\/p>\n
clauses may not be relevant.              But there is a proviso<\/p>\n
thereunder as per clause 4 of IMT 39.\n<\/p>\n
      19. It is contended that the policy conditions as<\/p>\n
mentioned above clearly stipulates that on the amount of<\/p>\n
premium of Rs.75\/- and Rs.50\/- respectively having been<\/p>\n
paid towards the loading and unloading workers attached to<\/p>\n
the insured are thus covered under the policy of insurance.<\/p>\n
According to us, more than the premium amount paid what<\/p>\n
has to be looked into is the clause as a whole contained in<\/p>\n
the policy of insurance as to ascertain whether there arises<\/p>\n
the liability to indemnify the owner in the case of any injury<\/p>\n
or death occurs or occurred to any one of the loading and<\/p>\n
unloading worker under the policy of insurance so issued.<\/p>\n
The amount of premium is something which is subject to<\/p>\n
variation from time to time.           No oral evidence or other<\/p>\n
documentary evidence is adduced other than to produce the<\/p>\n
policy.\n<\/p>\n
      20.      According      to   the    counsel appearing  for<\/p>\n
claimants and the owner, since they are employees<\/p>\n
employed by the employer, namely, the owner of the vehicle<\/p>\n
M.A.C.A Nos.761& 830\/08 and connected cases
\n                                      14<\/span><\/p>\n
and since the accident occurred while they were working in<\/p>\n
the course of employment and as such even statutorily the<\/p>\n
insurer is liable to indemnify the owner under Section 147<\/p>\n
of the M.V Act. But the Tribunal has not adverted to any of<\/p>\n
these contentions.\n<\/p>\n
      21. We may observe that though the case was<\/p>\n
adjourned on two occasions so as to enable the insurer to<\/p>\n
place on record the proposal, if any, made at the time of<\/p>\n
issuing the policy, which may throw some light to appreciate<\/p>\n
the contention on either side, they did not produce the same.<\/p>\n
However, in the circumstances, we are of the view that it is<\/p>\n
still open for them to do so if they are so advised and<\/p>\n
produce such additional materials which may have a bearing<\/p>\n
in interpreting the provisions contained in the      policy of<\/p>\n
insurance. In the absence of a finding entered into by the<\/p>\n
Tribunal adverting to the contention as raised by the parties<\/p>\n
and after referring to the materials and after referring to the<\/p>\n
relevant policy conditions, the finding of the Tribunal<\/p>\n
absolving the insurer is not sustainable as the finding is not<\/p>\n
supported by reasons and therefore the matter requires<\/p>\n
M.A.C.A Nos.761& 830\/08 and connected cases
\n                                      15<\/span><\/p>\n
reconsideration. We are not expressing any opinion either<\/p>\n
way on the interpretation of the policy conditions since<\/p>\n
both sides could place additional materials, if any, enabling<\/p>\n
them to report their case. The matter is directed to         be<\/p>\n
reconsidered and finding absolving the Insurance Company<\/p>\n
to indemnify the owner is set aside.         The compensation as<\/p>\n
fixed by the Tribunal has become final as we have already<\/p>\n
confirmed the award relating to the compensation awarded<\/p>\n
in each of these cases.\n<\/p>\n
      22. In the result, appeals are allowed in part for the<\/p>\n
limited purpose of considering whether the insurer is liable<\/p>\n
to indemnify the owner and whether they are jointly and<\/p>\n
severally liable to pay the amount as per the Award. Parties<\/p>\n
shall appear before the Tribunal on 6.3.2010.<\/p>\n
                                        P.R RAMAN,JUDGE<\/p>\n
                                P.R.RAMACHANDRA MENON,
\n                                             JUDGE<\/p>\n
ma<\/p>\n
M.A.C.A Nos.761& 830\/08 and connected cases
\n                                      16<\/span><\/p>\n
M.A.C.A Nos.761& 830\/08 and connected cases
\n                                      17<\/span><\/p>\n
M.A.C.A Nos.761& 830\/08 and connected cases
\n                                      18<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
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. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-97237","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nAnnamkutty vs V.V.Jinson on 15 December, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/annamkutty-vs-v-v-jinson-on-15-december-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Annamkutty vs V.V.Jinson on 15 December, 2009 - 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