Partly allowed

The New India Assurance Co. Ltd. v. Joseph Mathew

Kerala HC10 Mar 2023MACA/1963/2012

Case brief

AI extract

What is this about?

The High Court held that Rs.1 lakh awarded under 'disability' was duplicative of compensation for future loss of earning power and directed its refund. The Court also rejected the insurer's claim regarding lack of driving licence, noting the vehicle was a light motor vehicle (Tempo) covered by valid LMV licence.

What did the court decide?

One lakh rupees deducted from the award amount; balance amount to be deposited with interest.

The New India Assurance Co. Ltd. Vs Joseph Mathew — Motor Accident Claims | Kerala HC (2023)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MRS. JUSTICE SOPHY THOMAS

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FRIDAY, THE 10TH DAY OF MARCH 2023 / 19TH PHALGUNA, 1944

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MACA NO.1963 OF 2012

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AGAINST THE ORDER/JUDGMENT IN OP(MV) 289/2007 OF ADDITIONAL
MOTOR ACCIDENTS CLAIMS TRIBUNAL, ALAPPUZHA

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APPELLANT/2ND RESPONDENT IN OP(MV):

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THE NEW INDIA ASSURANCE CO. LTD.
M.O.WARD, ALAPPUZHA, REPRESENTED BY THE
DULY CONSTITUTED ATTORNEY, REGIONAL OFFICE, KANDAMKULATHY
TOWERS, M.G.ROAD, KOCHI-682011.

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BY ADV SRI.M.JACOB MURIKAN

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RESPONDENTS/PETITIONER & 1ST RESPONDENT IN OP(MV):

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1. JOSEPH MATHEW, S/O.JOSEPH, POLLAYIL VEETTIL, MADATHIL

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VELI COLONY, EAST OF PATTUKALM TEMPLE, MARARIKULAM SOUTH
PANCHAYATH, PIN-688549.

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2 N.K.SOYA, W/O.VASUDEVAN,

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NIVARTHIL, KANICHUKULANGARA P.O. CHERTHALA, PIN-688544.

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BY ADVS.

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SRI.G.PRIYADARSAN THAMPI

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SMT.C.R.ROSE

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SRI.A.N.SANTHOSH

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY
HEARD ON 06.03.2023, THE COURT ON 10.03.2023 DELIVERED THE
FOLLOWING:

MACA No.1963 of 2012

SOPHY THOMAS, J.

MACA No.1963 of 2012

Dated this the 10^th day of March, 2023

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J U D G M E N T

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The 2^nd respondent/insurer in OP(MV) No.289 of 2007 on the

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file of Motor Accidents Claims Tribunal, Alappuzha is assailing the impugned award as it is excessive in nature. The 1^st respondent is the claimant and 2^nd respondent is the owner of the offending vehicle.

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On 24.09.2006, at 3.45 p.m, while the 1^st respondent/claimant was riding a motorcycle through National Highway at Thiruvizha junction, KL-04/F-4697 autorickshaw driven by one Mr.Manoj, dashed against his motorcycle and he fell down and sustained injuries. He was taken to KVM Hospital, Cherthala and from there to Medical Trust Hospital, Ernakulam. He approached the Tribunal claiming compensation of Rs.7,08,000/-. The Tribunal awarded compensation of Rs.5,17,432/-.

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MACA No.1963 of 2012

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Heard Sri.Jacob Murikan, learned counsel appearing for the

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appellant and Sri.A.N Santhosh, learned counsel appearing for the 2^nd respondent.

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The driver of the offending autorickshaw was not made a party before the Tribunal as well as before the appellate court. The 2^nd respondent was the owner of the offending autorickshaw. The appellant/insurer was not disputing the policy of the offending autorickshaw. But, according to the insurer, the award passed by the Tribunal is on the higher side. Though the Tribunal awarded Rs.2 lakh towards loss of future earning power, Rs.1 lakh was again awarded under the head ‘disability’, which amounts to duplication. Moreover, Rs.40,000/- was awarded for loss of earning for one year.

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The 1^st respondent/claimant was a Supervisor in a coir factory and he claimed monthly income of Rs.4,000/-. The Tribunal took his notional income for one year as Rs.40,000/-. So, the monthly income fixed was @ Rs.3,333/-. Since there was hospitalisation for 78 days and he had undergone treatment in various hospitals, loss of income for one year assessed as Rs.40,000/in total is not excessive. So, the compensation awarded under the head ‘loss of earning’ is not liable to be

MACA No.1963 of 2012

interfered with.

Regarding the compensation for loss of future earning power, the Tribunal awarded Rs.2 lakh. Then there shall not be any additional compensation under the head ‘disability’. So, Rs.1 lakh awarded under the head ‘disability’ is a duplication of loss of earning power due to disability and hence, that amount is liable to be deducted. Under other heads, the amount awarded by the Tribunal seems to be reasonable and it need not be interfered with.

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Learned counsel for the appellant/insurer contended that the driver of the autorickshaw was not having driving licence at the time of accident and since there was violation of the policy conditions, the insurer is liable to recover the award amount from the 2^nd respondent/owner, after making the payment to the 1^st respondent/claimant. He is relying on Ext.B1 driving licence of the driver of the autorickshaw, which shows that he got three wheeler licence only on 27.01.2007 whereas the accident occurred on 24.09.2006. So, according to them, the driver of the autorickshaw was not having driving licence to drive a three wheeler on the date of accident.

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Learned counsel for the 2^nd respondent i.e owner of the

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MACA No.1963 of 2012

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autorickshaw produced Annexure A1 registration particulars of KL-04-F-4697 vehicle and it shows that it was an LMV-3 wheeled vehicle for transport. In Annexure A2 driving licence, particulars of the driver of the autorickshaw (Mr.Manoj), will show that he was having driving licence to drive light motor vehicles from 16.06.1990 onwards, which was renewed periodically.

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Learned counsel for the 2^nd respondent invited attention of this Court to the definition of an autorickshaw under Section 2(c) and definition of a light motor vehicle under Section 2(w) of the Kerala Motor Vehicles Rules, 1989.

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Section 2(c) defines an ‘autorickshaw’ as follows:

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" ’Autorickshaw’ means a motor vehicle constructed, adapted or used to carry not more than three passengers excluding the driver for hire or reward and having less than four wheels”.

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As per Section 2(w), a ‘three wheeler’ means ‘a motor

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vehicle having three wheels constructed, adapted or used either to carry not more than four persons excluding the driver otherwise than for hire or reward, or for the transport of goods whether for hire or not’ .

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So, obviously, an autorickshaw is different from a three

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MACA No.1963 of 2012

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wheeler defined under Section 2(w) of the Kerala Motor Vehicles Rules, 1989. Ext.A4 mahazar also shows that the offending vehicle was a three wheeler and Annexure A1 clearly shows that it was a light motor vehicle with classification ‘Tempo 3whlr minidor pickup van’. If so, the driver of the offending autorickshaw was having valid driving licence to drive that vehicle as on the date of accident, as evident from Annexure A2 driving licence. So, the contention of the appellant, that the driver of the offending vehicle was not having driving licence at the time of accident, and so the Insurance Company is entitled for pay and recovery order, is not tenable.

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Since there was duplication of compensation amount under the head ‘disability’, the 1^st respondent is liable to refund the excess amount of Rs.1 lakh awarded by the Tribunal.

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It is submitted by learned counsel for the appellant/insurer that the insurer had deposited 50% of the award amount before the Tribunal. While depositing the balance amount, the appellant is entitled to deduct Rs.1 lakh from the total award amount.

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In the result, the appeal is allowed in part, allowing the appellant/insurer to deduct Rs.1 lakh from the award amount. The appellant is directed to deposit the balance amount with interest @

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MACA No.1963 of 2012

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7.5% per annum from the date of petition till the date of deposit within a period of two months from the date of receipt of a copy of this judgment. The deposit must be in terms of the directives issued by this Court in Circular No.3 of 2019 dated 06/09/2019 and clarified in O.M.No.D1/62475/2016 dated 07/11/2019 after deducting the liabilities, if any, of the 1^st respondent towards Tax, balance court fee and legal benefit fund.

Sd/-

SOPHY THOMAS

JUDGE

smp

MACA No.1963 of 2012

A P P E N D I X

ANNEXURE A1:CERTIFIED COPY OF THE ABOVE RC PARTICULARS
IN RESPECT OF VEHICLE BEARING No.KL-4-F-4697.

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ANNEXURE A2:CERTIFIED COPY OF THE DRIVING LICENCE
ISSUED FROM THE REGIONAL TRANSPORT OFFICE,
ALAPPUZHA.

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True Copy

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P.S to Judge

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smp

The New India Assurance Co. Ltd. v. Joseph Mathew

Case brief

What is this about?

What did the court decide?

The New India Assurance Co. Ltd. v. Joseph Mathew

Case brief

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What did the court decide?

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