Partly allowed

The National Insurance Co. Ltd. v. C.Sanal and Others

Kerala HC16 Oct 2018MACA/762/2007

Case brief

AI extract

What is this about?

The High Court allowed the second appeal partly. It held the first insurer is liable under Section 163A. It remitted the second appeal for apportionment and awarded an additional Rs. 18,000 as balance compensation based on revised monthly income calculations.

What did the court decide?

M.A.C.A. No. 762/2007 dismissed. M.A.C.A. No. 883/2007 allowed in part; additional compensation of Rs. 18,000 awarded to be apportioned equally by insurers.

The National Insurance Co. Ltd. Vs C.Sanal and Others — Motor Accident Claims | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON

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TUESDAY ,THE 16TH DAY OF OCTOBER 2018 / 24TH ASWINA, 1940

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MACA.No. 762 of 2007

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AGAINST THE AWARD IN OPMV 1482/2002 of M.A.C.T.,NEYYATTINKARA DATED 30-11-2006

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APPELLANT/2ND RESPONDENT:

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THE NATIONAL INSURANCE CO. LTD.,TRIVANDRUM, REPRESENTED BY ITS MANAGER, MOTOR THIRD PARTY CELL, M.G.ROAD, ERNAKULAM.

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BY ADV. SRI.GEORGE CHERIAN (SR.)

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RESPONDENTS:

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1 C.SANAL, S/O CHELLAPPAN, CHAMPUKONATHU VEEDU, MANNAMTHALA P.O., THIRUVANANTHAPURAM, NOW RESIDING AT ABISH BHAVAN, ARIYAMCODE, OTTASEKHARAMANGALAM, NEYYATTINKARA.

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2 JAYA SINGH, S/O MANUEL SOBITHARAJ, 3-11A, PANNATTIVILAI, COLACHAL P.O., K.K.DISTRICT [R2 is deleted from the party array as per order dated 16.10.2018 in I.A. No. 1 of 2018]

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3 THE ORIENTAL INSURANCE CO.LTD., H.P.O., JUNCTION, NAGERCOIL.

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R1 BY SRI.R.NIKHIL R3 SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW SRI.P.ABDUL RAZAK

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16.10.2018, ALONG WITH MACA.883/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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MACA Nos. 762/2007 & 883/2007

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON

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TUESDAY ,THE 16TH DAY OF OCTOBER 2018 / 24TH ASWINA, 1940

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MACA.No. 883 of 2007

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AGAINST THE AWARD IN OPMV 1482/2002 of M.A.C.T.,NEYYATTINKARA DATED 30-11-2006

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APPELLANT:

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C.SANAL, AGED 30 YEARS, CEMPUKONATHU VEEDU, MANNAMTHALA P.O.,NEYYATTINKARA.

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BY ADV. SRI.PRATHEESH.P

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RESPONDENTS:

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1 S.PUSHPALATHA, SASTHAKRIPA, KALLAYAM.P.O., NEYYATTINKARA.

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2 THE DIVISIONAL MANAGER, NATIONAL INSURANCE COMPANY LTD.,SOUNDARYA BUILDING, IIND FLOOR, PUTHENCHANTHAI, M.G.ROAD, NEYYATTINKARA.

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3 JAYA SINGH, 3-IIA PARNATTIVILA I, COLACHAL.P.O., K.K.DISTRICT.

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4 M.RAJAN, MADATHUVILAI MARTHANDAM.P.O., K.K. DISTIRCT.

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5 THE MANAGER, ORIENTAL INSURANCE CO.LTD., H.P.O. JUNCTION, NAGERCOIL.

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R1 BY ADVS.SRI.NAGARAJ NARAYANAN R2 & 5 SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW SRI.SAIJO HASSAN

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 16.10.2018, ALONG WITH MACA.762/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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MACA Nos. 762/2007 & 883/2007

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JUDGMENT

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The driver of the tempo van bearing No. KL 01 S 273

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sustained some serious injuries when his vehicle hit against another tempo van which was parked on the wrong side of the road, on 04.08.2000. The injuries were sought to be compensated by filing a claim petition, under Section 163A of the M.V. Act, 1988.

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The insurer of the tempo van which was being

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driven by the claimant contended before the Tribunal that they did not have any liability to satisfy the amount, in view of the nature and extent of negligence on the part of the injured. The liability was sought to be disputed by the insurer of the other tempo van as well, which was lying parked on the side of the road [insured by the Oriental Insurance Company]. After analysing the

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materials on record, and in particular the evidence given by the claimant as PW1, documents produced as Exts. A1 to A11 from the part of the claimant and Ext. B1 produced

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from the part of the respondents, it was held that

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MACA Nos. 762/2007 & 883/2007

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accident was because of the negligence on the part of the drivers of both the vehicles and the liability was apportioned in the ratio of 50:50. Insurers of both the vehicles admitted existence of valid policy in respect of the vehicle concerned.

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Though the claimant sought to contend that there was 16% disability, the doctor concerned was not examined and in the said circumstances, the Tribunal reckoned only 10% disability to work out the disability compensation, with regard to which no interference is warranted. The Tribunal awarded a sum of Rs.43,200/- towards the permanent disability, reckoning the notional monthly income as Rs.2000/- and adopting multiplier of '18' [observing that the injured had not completed the age of 30 years]. A sum of Rs.5000/- was granted towards pain and sufferings and another sum of Rs.6000/- for loss of earning. Accordingly, a total compensation of Rs.54200/was awarded; which was directed to be satisfied with interest @ 7.5% p.a., on 50 : 50 basis, by the two insurers as aforesaid.

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MACA Nos. 762/2007 & 883/2007

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The learned counsel for the appellant insurer in MACA No. 762 of 2007 sought to assert the contention that the said insurer is not liable to satisfy claim in respect of driver of the vehicle insured by them in a claim petition under Section 163A of the Act and that the liability ought to have been mulcted upon the shoulders of the parties of the other vehicle. Even though it may appear that there is something to be looked into in this regard, on a deeper scrutiny, this Court is of the veiw that the said contention does not hold any water at all. This is more so since the driver of the vehicle is having statutory coverage in terms of Section 147 of the M.V. Act, 1988 and the requirement of policy issued under Section 147 of the Act is in respect of such liability as well; however subject to the rider that it shall only be to the extent as payable under the Workmen's Compensation Act. In the instant case, there is no dispute that the driver had suffered injuries resulting permanent disability, which has been reckoned as 10% [against the certified disability to an extent of 16%]. As such, the

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MACA Nos. 762/2007 & 883/2007

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claimant was very much entitled to have the compensation from the insurer of the very same vehicle, had he approached the Commissioner for Workmen's Compensation seeking appropriate extent of relief. The Tribunal in the instant case has passed an Award and the liability has been apportioned fixing the same as 50 : 50 basis and as it stands so, the contention raised by the appellant in MACA No. 762 of 2007 is only to be repelled and it

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does not warrant any interference, so long as the liability is within the limits.

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Coming to MACA No. 883 of 2007, the monthly

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income reckoned by the Tribunal for working out the

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extent of compensation payable is only Rs.2000/-. The

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claimant was at the age of nearly 30 years and was admittedly driving the vehicle at the relevant time, on

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the strength of valid driving licence. This being the

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position, the monthly income could have been reckoned as Rs. 3000/- especially since the accident had occurred on 04.08.2000. In the said circumstances, the disability compensation has to be reworked adopting Rs. 3000/- as

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MACA Nos. 762/2007 & 883/2007

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the monthly income and reckoning the very same extent of disability adopted by the Tribunal and the appropriate multiplier of 17. It will come to Rs.61200/- [3000 x 17 x 10/100 x 12 ]. After deducting the amount already awarded by the Tribunal, the balance compensation payable will come to Rs.18000/-[Rupees Eighteen thousand only]. The appellant is entitled to get the said amount with interest @ 7.5% p.a from the date petition, till satisfaction. The said liability also liable to be apportioned by the two insurers in equal proportion.

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The learned counsel for the Oriental Insurance

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Company submits that 50% of the compensation, as awarded by the Tribunal, has already been satisfied and that the

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same stands disbursed to the claimant, which is not disputed by the learned counsel for the claimant. The balance amount covered by the Award and also 50% of the enhanced compensation shall be satisfied by the appellant in MACA 762 of 2007 i.e. second respondent in M.A.C.A. No. 883 of 2007, at any rate, within six weeks from the date of receipt of a copy of the judgment. The remaining

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MACA Nos. 762/2007 & 883/2007

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50% of the enhanced compensation shall be satisfied by the 5^th respondent in M.A.C.A. No. 883 of 2007.

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In the result, M.A.C.A. No. 762 of 2007 stands

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dismissed and M.A.C.A. No. 883 of 2007 stands allowed in part.

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Sd/-

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P.R.RAMACHANDRA MENON

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JUDGE

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kmd

The National Insurance Co. Ltd. v. C.Sanal and Others

Case brief

What is this about?

What did the court decide?

The National Insurance Co. Ltd. v. C.Sanal and Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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Case details

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