Partly allowed

The New India Assurance Co.Ltd v. Latheef and Others

Kerala HC9 Nov 2022MACA/1434/2011

Case brief

AI extract

What is this about?

The High Court allowed a cross objection challenging compensation quantum, ordering the insurer to deposit an additional sum. The court dismissed the insurer's appeal, holding that temporary license lapse was not a fundamental breach. Compensation for loss of earnings and other heads was increased based on judicial precedents.

What did the court decide?

The cross objection is allowed; the insurer is directed to deposit an additional amount of approximately Rs.2,96,350/- along with interest at 7.5% per annum.

The New India Assurance Co.Ltd Vs Latheef and Others — Motor Accident Claims | Kerala HC (2022)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MRS. JUSTICE MARY JOSEPH

¶4

WEDNESDAY, THE 9TH DAY OF NOVEMBER 2022 / 18TH KARTHIKA, 1944

¶5

MACA NO. 1434 OF 2011

¶6

AGAINST THE AWARD DATED 28.02.2011 IN OP(MV)NO.1998/2007 OF PRINCIPAL
MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE

¶7

APPELLANT/3RD RESPONDENT IN O.P.(M.V)

¶8

THE NEW INDIA ASSURANCE CO.LTD.,
THRIPTHI BUILDINGS,EAST NADAKKAVU,KOZHIKODE,
REPRESENTED BY THE DULY CONSTITUTED ATTORNEY,
(M.G.RAMACHANDRAN NAIR),REGIONAL OFFICE,KANDAMKULATHY
TOWERS, M.G.ROAD,KOCHI-682 011.

¶9

BY ADV SRI.M.JACOB MURICKAN, STANDING COUNSEL

¶10

RESPONDENTS/PETITIONR & RESPONDENTS 1 &2 IN O.P.(M.V.):

¶11

1LATHEEF,
S/O SAIDALAVI,
THIYYATH HOUSE, PERUMUGHAM POST, FEROKE,
KOZHIKODE, PIN-673633.

¶12

2SAHEER,
S/O KOYA,
CHANGARAMBALATH HOUSE, VELLIPARAMBA POST,
KOZHIKODE, PIN-673008.

¶13

3PRADEEP T.
S/O.RAJAN, THOTTASSERY, THAYYILTHODI,
FEROKE, KOZHIKODE, PIN-673633.

¶14

R1 BY ADV.SRI.JACOB ABRAHAM
R2 BY ADVS.SRI.K.M.FIROZ
 SMT.M.SHAJNA

¶15

THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
09.11.2022, ALONG WITH CO.2/2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:

¶16

¶17

M.A.C.A No.1434 of 2011

¶18

¶19

Cross Objection 2 of 2022

¶20

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶21

PRESENT

¶22

THE HONOURABLE MRS. JUSTICE MARY JOSEPH

¶23

WEDNESDAY, THE 9TH DAY OF NOVEMBER 2022 / 18TH KARTHIKA, 1944

¶24

CO NO. 2 OF 2022

¶25

AGAINST THE AWARD DATED 28.02.2011 IN OP(MV)NO.1998/2007 OF
PRINCIPAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE

¶26

CROSS OBJECTOR/1ST RESPONDENT:-

¶27

LATHEEF,
AGED 51 YEARS,
SON OF SAIDALAVI,
THIYYATH HOUSE, PERUMUGHAM POST,
FEROKE, KOZHIKODE-673 671

¶28

BY ADV SRI.JACOB ABRAHAM

¶29

RESPONDENTS/APPELLANT AND 2ND AND 3RD RESPONDENTS:-

¶30

1THE NEW INDIA ASSURANCE CO LTD,
THRUPTI BUILDINGS, EAST NADAKKAVU, KOZHIKODE,
REPRESENTED BY THE DULY CONSTITUTED ATTORNEY
(M.G RAMACHANDRAN NAIR), REGIONAL OFFICE,
KANDAMKULATHI TOWERS, M.G.ROAD, KOCHI-682016

¶31

2 SAHEER, SON OF KOYA, CHANGARAMBALATH HOUSE, VELLIPARAMBA POST, KOZHIKODE-673008

¶32

3PRADEEP.C.
SON OF RAJAN, THOTTASSERY,
THAYYITHODI, FEROKE,
KOZHIKODE-673633

¶33

THIS CROSS OBJECTION HAVING BEEN FINALLY HEARD ON 09.11.2022,

¶34

ALONG WITH MACA NO.1434/2011, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:

¶35

¶36

M.A.C.A No.1434 of 2011 & Cross Objection 2 of 2022

¶37

JUDGMENT

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Dated this the 9^th day of November, 2022

¶39

The appeal and Cross Objection are originated from an award passed by Principal Motor Accidents Claims Tribunal, Kozhikode (for short the ‘Tribunal’) on 28.02.2011 in OP(MV) No.1998/2007. The appellant in MACA No.1434/2011 is the insurer of the offending vehicle and cross objector is the 1^st respondent in the appeal who was the claimant before the Tribunal.

¶40

Original Petition above was filed by the Cross Objector before the Tribunal seeking for a sum of Rs.3,00,000/- as compensation alleging that he has sustained injuries in a motor accident that occurred on 24.06.2007 at about 5.40 p.m. According to him he was travelling in a motorcycle bearing Registration No.KL-04-B3818 as pillion rider through Feroke-Mannur public road and when reached at “Kashayappadi” a bus bearing Registration

¶41

M.A.C.A No.1434 of 2011 &

¶42

Cross Objection 2 of 2022

¶43

¶44

No.KL-11-U-8279, dashed against the motorcycle and thereby he sustained serious injuries. According to him the bus bearing Registration No.KL-11-U-8279 was driven by its driver in a rash and negligent manner and thereby the accident was occurred. Following the sustainment of injuries he was taken to Medical College Hospital, Kozhikode and was treated there. It is alleged in the original petition that the driver, owner and insurer of the offending vehicle were jointly and severally liable to compensate him. They were arrayed as respondents 1 to 3 in the original petition seeking compensation. 1^st and 2^nd respondents who were the owner and driver of the offending vehicle, though served with notice, remained absent and accordingly they were declared ex parte.

¶45

The 3^rd respondent filed written statement admitting insurance coverage for the offending vehicle at the relevant time of accident. It was contended that the motor accident was occurred due to contributory negligence on the

¶46

¶47

M.A.C.A No.1434 of 2011 &

¶48

Cross Objection 2 of 2022

¶49

part of the person who has ridden the motor cycle at the relevant time. 3^rd respondent had also taken a contention that the driver of the offending vehicle had driven the vehicle without a valid driving licence. The quantum claimed as compensation under various heads are also disputed for the reason that those are exorbitant.

¶50

Evidence was adduced by both sides before the Tribunal. On the side of the petitioner Exts.A1 to A15 and Ext.X1 were marked. Ext.C1 was marked as court Exhibit. On the side of the 3^rd respondent Ext.B1 was marked. The Tribunal heard both sides and arrived at a finding that the driver of the bus has driven the same in a rash and negligent manner and thereby caused the motor accident. The Tribunal has also found that the petitioner has sustained serious injuries in the motor accident and therefore is entitled to get compensation from the respondents. The Tribunal has fixed the compensation payable as Rs.2,80,354/- and directed the 3^rd respondent insurer to deposit the same with interest at

¶51

¶52

M.A.C.A No.1434 of 2011 &

¶53

Cross Objection 2 of 2022

¶54

the rate of 7% per annum from 14.12.2007, the date on which the original petition was filed till the date of realisation, alongwith a cost of Rs.1000/-. The 3^rd respondent was also directed to deposit the amount within 30 days.

¶55

MACA 1434/2011 was filed by the insurer/3^rd respondent challenging the impugned award for the reason that though contention was taken about lack of licence for the driver of the bus to drive the same and the same was established by producing Ext.B1, the driving licence particulars, the Tribunal failed to order for recovery of compensation from the owner of the vehicle. Cross Objection was filed challenging the impugned award for the reason that the monthly income for the purpose of computation of compensation was taken by the Tribunal on the lower side and also that the quantum stands awarded under various heads of compensation falls on the lower side.

¶56

Heard both sides.

¶57

M.A.C.A No.1434 of 2011 &

¶58

Cross Objection 2 of 2022

¶59

¶60

It is contended by the appellant in MACA

¶61

No.1434/2011 that the copy of the driving licence and the driving licence particulars produced and marked in evidence respectively as Ext.A14 and Ext.B1 would go to show that the driver of the bus was not holding a valid driving licence at the relevant time of the motor accident. According to him, the driving licence particulars marked in evidence as Ext.B1 would disclose that though the driver of the vehicle had a driving licence to drive the transport vehicle for a period from 06.05.2005 . The validity of the licence period was only upto 02.05.2007. According to him the accident was occurred on 24.06.2007. Therefore for an interregnum period of two months, the driver of the offending vehicle was not holding a valid driving licence in view of the failure on his part to get it renewed on expiry of it’s period. According to the learned counsel, in the above circumstances, the Tribunal ought to have considered that there was breach of policy conditions envisaged under Sub-section (2) of Section

¶62

M.A.C.A No.1434 of 2011 &

¶63

Cross Objection 2 of 2022

¶64

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149 Motor Vehicles Act, 1988 (for short ‘the M.V.Act’) and ordered for recovery of the compensation amount by the insurer from the owner of the offending vehicle.

¶66

Sri. K.M.Firoz, the learned counsel for the 1^st respondent has contended that the driver of the offending vehicle was holding a valid driving licence at the relevant time of the motor accident. But the only thing was that he failed to get it renewed for an interregnum period. According to him the driving licence was renewed only on 09.07.2007. The learned counsel contended that in the above context, it cannot be taken that the driver was not holding a valid driving licence or that he does not have the authority to drive the transport vehicle at the relevant time of accident. The learned counsel has relied on a decision rendered by the Apex Court in Francisca Luiza Rocha and Others V. K. Valarmathi and Others [2018 KHC 5487] wherein it has been held by the Apex Court that if the driver had a licence to drive a particular kind of vehicle but validity of the same had

¶67

M.A.C.A No.1434 of 2011 &

¶68

Cross Objection 2 of 2022

¶69

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expired, that by itself will amount to a fundamental breach of the terms and conditions of the policy of insurance is not correct. The Apex Court held so while reversing a judgment of the High Court finding that for failure of the driver to renew the driving licence, he does not have valid driving licence to drive the offending vehicle at the relevant time of accident.

¶71

The learned counsel has also cited

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K.G.Srinivasamurthy V. Habib Khathun and Ors [2002 ACJ 557] . It was held in the case that wherein the driver of the offending vehicle failed to renew the driving license held by him for an interregnum period of 50 days that it cannot be taken as a case wherein the driver doesn’t know driving of the particular kind of vehicle. It was further held that non renewal of the driving license as on the date of accident cannot be said to have contributed to the cause of the accident. The Court further observed that where the breach alleged is not a factor which had not contributed to the cause

¶73

M.A.C.A No.1434 of 2011 &

¶74

Cross Objection 2 of 2022

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10

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of the accident, the said breach cannot be said to be a fundamental one so as to offer a ground to the insurer to avoid liability. Special Leave Petition was filed against the above deicison by the insurer and that was also dismissed.

¶77

The learned counsel has also relied on New India

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Assurance Co.Ltd. V. Sri.Krishanappa and Ors. Reported in MANU/KA/2498/2020 wherein a Division Bench of the High Court of Karnataka has held in a case wherein there was a delay in getting the licence renewed that, once the renewal is effected lateron, the renewal have to be taken from the date of the application and not from the date of expiry of the licence. It was also held that it cannot be said in such cases that the driver of the offending vehicle was not qualifed to drive the vehicle. The view was taken relying on the dictum of the Apex Court in National Insurance Co.Ltd . V.Swaran Singh [2004 KHC 314] . The said decision was taken up in challenge by filing a Special Leave Petition but the same was dismissed by the Apex Court vide order passed on

¶79

¶80

M.A.C.A No.1434 of 2011

¶81

¶82

Cross Objection 2 of 2022

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10.08.2021. Therefore, the dictum of the High Court of Karnataka on the point has become final. In the decision cited, as held by various courts, it is for the insurer to establish the breach as a fundamental one and then alone it would get exonerated from the liability to indemnify the insured. In the case on hand as discussed earlier, on the basis of Ext.B1 it was held that the driver of the offending vehicle had driving licence to drive a non transport vehicle till 02.05.2007. Lateron the licence was renewed by him on 09.07.2007. So it is only for a period of about two months that the driver of the offending vehicle was not holding the driving licence. It cannot be taken in the said circumstances that the driver has lost the authority or the qualification to drive the vehicle during the interregnum period. It is not a case wherein he is not in possession of a driving license but has failed to renew the driving license already posssessed by him. Therefore as held by the Apex Court it cannot be treated as a fundamental breach and the appellant/insurer is

¶84

¶85

M.A.C.A No.1434 of 2011 &

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Cross Objection 2 of 2022

¶87

not entitled to get an order exonerating them from liability to indemnify the insured. The Tribunal in the case on hand has correctly fixed the liability on the insurer to indemnify the insured. This Court sees no ground to interfere with the said finding. Appeal fails for the reason and is dismissed.

¶88

In Cross Objection No.2/2022 the quantum of compensation is under challenge. The learned counsel for the Cross Objector has urged firstly that compensation for loss of earning and disability have been awarded by the Tribunal on the lower side by fixing a meagre sum of Rs.3,000/- as his monthly income. According to the learned counsel in the claim petition the Cross Objector had raised a claim that he was a worker in charge of constructions and was getting Rs.14,000/- as monthly salary. According to the learned counsel, despite a pleading raised to that effect, the Tribunal had fixed only Rs.3,000/- as the monthly income of the petitioner on a notional basis and compensation for loss of earning and permanent disability were calculated on its

¶89

¶90

M.A.C.A No.1434 of 2011 &

¶91

Cross Objection 2 of 2022

¶92

basis. The learned counsel seeks for modification of the monthly income by relying on the fixation by the Apex court of the monthly income in Ramachandrappa V. Manager, Royal Sundaram Alliance Insurance Co.Ltd. [(2011) 13 SCC 236] . It is further contended by the learned counsel that under various other heads also the Tribunal failed to award just and reasonable compensation. The learned counsel has also pointed out that under the head loss of amenities and enjoyments in life, the Tribunal failed to award any sum as compensation. Though the multiplier taken by the Tribunal is disputed at the time of argument, the learned counsel has conceded that 15 taken as multiplier by the Tribunal is correct. This Court has gone through the impugned award and found therefrom that the Tribunal had awarded compensation for loss of earning for six months by taking Rs.3,000/- as the monthly income. The injuries sustained by the petitioner are disclosed from the Accident Register cum – wound certificate and the discharge cards respectively

¶93

M.A.C.A No.1434 of 2011 &

¶94

Cross Objection 2 of 2022

¶95

14

¶96

marked in evidence as Ext. A2 and Exts.A4 to A7. Immediately after the motor accident the petitioner was transported to Koya’s Hospital Cheruvannurr, Feroke and the Accident Register -cum -Wound Certificate was prepared there. It is found from Ext.A8 Certificate issued from District Co-op. Hospital Ltd. Kozhikode that the petitioner had sustained comminuted fracture of shaft of right femur, fracture both bones of right leg and galleazzi fracture of right leg. As part of treatment open reduction and internal fixation with DHS with LCP right, and open reduction and internal fixator with square nail were done. At the time of discharge from the hospital he was advised to continue quadriceps exercises and medications. In the CT Scan report lower lobes of both lungs show contusion and there was evidence of hemothorax on right side. Sutures were removed on the 10^th day and PTP was given. Lateron he was taken to Ganga Medical Centre & Hospitals Pvt.Ltd., Coimbatore for better medical management and Ext.A7 is the discharge

¶97

M.A.C.A No.1434 of 2011 &

¶98

Cross Objection 2 of 2022

¶99

15

¶100

summary issued therefrom. He was admitted in the hospital for treatment relating to non-union of intertrochanteric fracture with Right Hip with DHS in situ and nonunion of fracture shaft of Femur with right femur -LCP in situ. Bone grafting at intertrochanteric region of right hip and shaft of right femur at middle one third level were done at the Hospital. Galeazzi fracture of dislocation was treated conservatively with Ender’s nail. He was discharged from the hospital with advice to continue medication and exercises.

¶101

He got his disability assessed by the Medical Board, Medical College Hospital, Calicut. The Medical Board examined him and issued Ext. C1 certificate on 09.12.2010 assessing his permanent disability as 36%. It is noticed that the Tribunal has taken the entire disability assessed by the Medical Board for the purpose of computation of compensation for disability.

¶102

M.A.C.A No.1434 of 2011 &

¶103

Cross Objection 2 of 2022

¶104

¶105

As already stated the monthly income of the petitioner was taken as Rs.3,000/-. This Court is inclined to take a modified monthly income on the basis of the monthly income fixed by the Apex Court in Ramachandrappa supra. Therefore the proportionate monthly income which is liable to be taken is Rs.6,000/-. The Tribunal had taken loss of earning for six months. The nature of injuries have already been discussed with. The petitioner had also undergone various surgical procedures for correction of fractures sustained by him in the motor accident. The fracture was reported non-united much later and the petitioner had also approached the hospital for correction of the same and bone grafting was done. He had different spells of hospitalisation for different needs. Taking all these aspects into consideration, the period for which loss of earning was assessed by the Tribunal appears to this Court on the lower side. This Court is inclined to modify the period to 8 months. When compensation for loss of earning is calculated on the

¶106

M.A.C.A No.1434 of 2011 &

¶107

Cross Objection 2 of 2022

¶108

17

¶109

basis of the modified monthly income of Rs.6,000/- and for a period of eight months, the amount would come to Rs.48,000/-. Rs.18,000/- having been already awarded by the Tribunal, the petitioner is entitled to get Rs.30,000/- as additional compensation under that head. The nature of treatment and number of hospitals wherefrom the petitioner availed treatment is already discussed with. Therefore, Rs.1000/- stands awarded by the Tribunal towards Transportation Expenses appears to this Court, on the lower side. Rs.5,000/- having been claimed by the petitioner, this Court is inclined to grant the same as compensation towards transportation expenses. Rs.1000/- already stands granted by the Tribunal under the head is deducted from the sum now arrived at, petitioner will get Rs.4,000/- as additional compensation. As compensation towards extra nourishment also the Tribunal had awarded only Rs.1000/- and this Court is inclined to modify it to Rs.5,000/- as claimed by the petitioner. Therefore, the petitioner will get Rs.4,000/-

¶110

¶111

M.A.C.A No.1434 of 2011 &

¶112

Cross Objection 2 of 2022

¶113

additionally. As compensation towards damages to clothing the Tribunal has awarded only Rs.750/- and this Court is inclined to modify it to Rs.1000/-. Therefore, the petitioner will get Rs.250/- in addition. Under the head bystander expenses, the Tribunal had awarded Rs.3,700/-. The accident being in the year 2007, this Court is inclined to modify the daily sum taken as Rs.200/- and to award Rs.7,400/- under the head. Rs.3,700/- having been awarded by the Tribunal, the petitioner will get Rs.3,700/as additional compensation. Under the head pain and sufferings the Tribunal has awarded only 15,000/- against the claim for Rs.50,000/-. It is noticed that the petitioner had sustained fracture shaft of right femur and fracture of Trochandra, femur fracture, both bones of right leg, fracture of three ribs and also contusion in the lungs. He had also undergone various surgical procedures as part of medical management. In the above circumstances, this Court finds it reasonable to award Rs.50,000/- as compensation under

¶114

¶115

M.A.C.A No.1434 of 2011 &

¶116

Cross Objection 2 of 2022

¶117

that head. Therefore the additional compensation will come to Rs.35,000/-. The Tribunal failed to award any sum as compensation under the head loss of amenities and enjoyments in life. This Court is inclined to award Rs.25,000/- under that head. Under the head permanent disability the Tribunal has assessed compensation by taking Rs.3,000/- as the monthly income. This Court is inclined to refix the compensation with the modified monthly income of Rs.6,000/- and maintaining the other factors taken by the Tribunal. Therefore, the compensation payable would come to Rs.3,88,800/-. Rs.1,94,400/- was already awarded by the Tribunal. Therefore, the petitioner will get Rs.1,94,400/- as additional compensation.

¶118

In the above re-assessment, the petitioner (cross objector) will get Rs.2,96,350/- as additional compensation. The said sum will carry interest at the rate of 7.5 % per annum from the date of filing of the Original Petition till the date of realisation. Liability was fixed on the insurer of the

¶119

M.A.C.A No.1434 of 2011 &

¶120

Cross Objection 2 of 2022

¶121

20

¶122

offending vehicle by the Tribunal and the insurer is directed to deposit the additional sum found as payable as well as the original sum stands awarded by the Tribunal (if not already paid) alongwith interest fixed respectively for the said sums and cost ordered by the Tribunal within a period of two months from the date on which a certified copy of this judgment is received.

¶123

MACA stands dismissed and Cross Objection stands allowed accordingly.

¶124

Sd/MARY JOSEPH JUDGE

¶125

MJL

The New India Assurance Co.Ltd v. Latheef and Others

Case brief

What is this about?

What did the court decide?

The New India Assurance Co.Ltd v. Latheef and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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