Allowed

Sree Gokulam Chit and Finance Co. Ltd. v. George Wilson

Kerala HC11 Aug 2022MACA/534/2013

Case brief

AI extract

What is this about?

The Court allowed the appeal against a Motor Accidents Claims Tribunal award. Due to the driver's lack of a valid licence for the specific vehicle, the insurer retains the right of recovery. However, the Tribunal's reduced award for disability income was corrected to Rs.25,000 and loss of earnings was recalculated, reducing the total compensation to Rs.1,80,200.

What did the court decide?

The award amount reduced to Rs.1,80,200 along with 7.5% interest to be paid by the appellant owners, with the insurer directed to deposit and subsequently recover from the owner.

Sree Gokulam Chit and Finance Co. Ltd. Vs George Wilson — Consumer Protection | Kerala HC (2022)

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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 A. BADHARUDEEN THURSDAY, THE 11^TH DAY OF AUGUST 2022 / 20TH SRAVANA, 1944

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MACA NO. 534 OF 2013

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AGAINST THE AWARD IN OP(MV)NO.852/2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM

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APPELLANTS/1ST & 2ND RESPONDENTS :

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1 SREE GOKULAM CHIT AND FINANCE CO. LTD., 1ST BALFOR ROAD BRANCH, KELLYS CORNER, CHENNAI-10, REPRESENTED BY IT'S MANAGING DIRECTOR, A.M.GOPALAN, S/O.CHATHU, SREE GOKULAM CHIT & FINANCE CO.PVT.LTD, REGISTERED OFFICE AT GOKULAM TOWERS, KODAMBAKKAM, NO.66, ARCOT ROAD, CHENNAI - 600 024. 2 VISALAN, S/O.GOVINDAN, VELUTHEDATH VEEDU, VETTUVELIMURI, KARTHIKAPPALLY VILLAGE. BY ADVS. SRI.K.S.BABU SRI.BABU SHANKAR SMT.N.SUDHA SRI.VIPIN VISWAN

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RESPONDENTS/CLAIMANT & 3RD RESPONDENT :

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1 GEORGE WILSON, AGED 45 YEARS, S/O.VINSCENT, SEENA BHAVAN, KANDACHIRRA CHERRY, PANAYAM VILLAGE, KOLLAM - 691 601.

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MACA No.534 of 2013

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2 THE DIVISIONAL MANAGER, NEW INDIA ASSURANCE CO.LTD., KOLLAM - 691 001.

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R1 BY ADV.SRI.C.RAJENDRAN R2 BY ADV.SRI.LAL GEORGE

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 11.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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MACA No.534 of 2013

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MACA No.534 of 2013

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J U D G M E N T

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This appeal arises out of award in O.P.(MV)No.852 of 2007 on the file of the Motor Accidents Claims Tribunal, Kollam dated 10.10.2012. The appellants herein are respondents 1 and 2, the owner and the driver of the motorcycle bearing Registration No.KL-02/V 4067, involved in the accident, driven by the second respondent. The respondents herein are the insurer as well as the claimant before the Tribunal.

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Heard Adv.Smt.N.Sudha, the learned counsel appearing for the appellants, Adv.Smt.SreeVidhya, the learned counsel appearing for the claimant and Adv.Sri.Lal

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MACA No.534 of 2013

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George, the learned Standing Counsel appearing for the insurance company.

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Brief facts of the case are as follows:

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The claimant before the Tribunal, who sustained injuries pursuant to an accident occurred on 13.11.2005 at 11.00 a.m., while he was travelling on his motorcycle bearing Registration No.KL-02/T 7109 and when he was knocked down by the motorcycle bearing Registration No.KL-02/V 4067 driven by the second respondent, approached the Tribunal and pressed for compensation to the tune of Rs.10,00,000/- on the allegation that he sustained very serious injuries in the accident.

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Respondents 1 and 2 filed written statement before the Tribunal disputing negligence and quantum, while highlighting policy with the third respondent.

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MACA No.534 of 2013

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R3 filed written statement admitting policy

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and disputing the negligence. While challenging the quantum, a specific contention raised to the effect that the second respondent did not possess a valid driving licence at the time of accident and therefore, the company has no liability to indemnify the insured.

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The Tribunal ventured the matter relying on the documentary evidence. Exts.A1 to A10 marked on the side of the claimant and Ext.B1 marked on the side of the respondents. Finally, the Tribunal granted Rs.2,08,000/- as compensation along with 7.5% interest as against the claim of Rs.10,00,000/-.

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The Tribunal found that the second respondent

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did not possess a valid driving licence at the time of accident and thereby granted recovery right to the insurer in respect of the award amount.

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MACA No.534 of 2013

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The appellants are aggrieved by the award on

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two grounds. It is argued by the learned counsel for the

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appellants that the second respondent was having driving licence at the time of accident to drive motorcycle with gear and Ext.B1 is the copy of the said licence.

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On perusal of Ext.B1 licence, it is noticed that

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the second respondent possessed a valid driving licence to 'drive light motor vehicles' and he did not possess driving licence either to drive motorcycle with gear or without gear. Thus, it appears that the second respondent did not posses a valid driving licence to ride either motorcycle with gear or without gear at the time of accident and therefore, there is violation of policy conditions. In view of the matter, the recovery right granted by the Tribunal for the said ground does not require any interference and the same shall stand confirmed.

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MACA No.534 of 2013

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It is argued by the learned counsel for the appellants that the quantum of compensation granted by the Tribunal is on higher side. It is submitted that in this matter, no disability certificate produced by the claimant and the Tribunal suo motu fixed the disability at 12% and by fixing monthly income at Rs.3,000/-, Rs.64,800/- was granted towards disability income. The learned counsel would submit that the said procedure adopted by the Tribunal is wrong and therefore, the same requires interference.

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It is submitted by the learned counsel for the claimant that the claimant being a heavy vehicle driver sustained comminuted fracture tibia and fibula left leg along with injuries on heel and knee. Therefore, the disability, though fixed by the Tribunal without the aid of disability certificate, the same need not be interfered. The learned counsel for the insurance company also supported the

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MACA No.534 of 2013

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arguments of the learned counsel for the appellants. He

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submitted that fixation of 12% disability suo motu by the Tribunal cannot be justified.

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It is not in dispute that the disability is a matter to be decided by a competent doctor. Fixation of disability by the Tribunal suo motu based on the injuries cannot be encouraged for any reason, unless the said percentage of disability is not opposed by the other side. However, it is noticed that in this matter, the claimant sustained fracture tibia and fibula left leg and he underwent treatment for the same for a period from 13.11.2005 till 06.12.2005. He was treated again for a period from 10.06.2006 to 01.07.2006 as evident from Exts.A6 and A7 discharge card. It is noticed that he was again admitted from 29.06.2007 to 05.07.2007 and 13.06.2008 to 18.06.2008. Thus, hospitalisation was for a period of 65 days.

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MACA No.534 of 2013

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That apart, the income of the claimant as borne out from the petition averments is Rs.6,000/- per month, being a heavy vehicle driver. But the Tribunal fixed the same at Rs.3,000. If the ratio in [(2011) 13 SCC 236],

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Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. is applied, the income would come to Rs.5,000/-. The Tribunal granted loss of earnings for a period of six months at the rate of Rs.3,000/- per month.

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Since the disability was fixed by the Tribunal

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without the aid of disability certificate, when the said procedure was objected by the other side, the same cannot be justified. That apart, even personal examination of the claimant was not done by the Tribunal. The claimant, in fact, failed to give oral evidence atleast. Therefore, I am of the view that Rs.64,800/- granted towards the disability income, fixing 12% disability is liable to be reduced to a

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MACA No.534 of 2013

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consolidated sum of Rs.25,000/- considering the injuries.

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In this matter, the loss of earnings granted by

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the Tribunal for a period of six months at the rate of Rs.3,000/- is liable to be re-calculated at the rate of Rs.5,000/-. Thus, the loss of earnings is as under;

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5,000x6 = Rs.30,000/-

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Out of which, Rs.18,000/- was granted by the Tribunal. Rs.30,000-18,000= Rs.12,000/- more is granted under the head loss of earnings.

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In the result, this appeal is allowed. It is ordered that the original claimant is not entitled to get Rs.2,08,000/as compensation and the award amount stands reduced to Rs.1,80,200/- (Rupees One lakh Eighty Thousand Two Hundred only) along with interest at the rate of 7.5% from the date of petition till the date of deposit or realisation payable by R1 and R2, since R2 did not possess a valid

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MACA No.534 of 2013

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driving licence at the time of accident and thereby, the policy condition was violated.

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The insurance company is directed to deposit the same in the name of the original claimant within two months from today and on deposit, the original claimant is at liberty to release the same. On deposit, the insurer is allowed to recover the amount with interest and costs from R1, the insured/owner of the motorcycle bearing Registration No.KL02/V 4067.

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Sd/-

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A.BADHARUDEEN, JUDGE

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Sree Gokulam Chit and Finance Co. Ltd. v. George Wilson

Case brief

What is this about?

What did the court decide?

Sree Gokulam Chit and Finance Co. Ltd. v. George Wilson

Case brief

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