Jaleel vs The Manager on 15 November, 2011

[Cites 18, Cited by 0]

Kerala High Court

Jaleel vs The Manager on 15 November, 2011

Both these appeals arise from the award dated 15.11.2011 passed by the Motor Accidents Claims Tribunal, Irinjalakkuda in O.P.(M.V)No.489 of 2008. The former appeal has been filed by the injured-applicant upon feeling aggrieved by and dissatisfied with the quantum of compensation granted thereunder and seeking its enhancement. The latter appeal has been preferred by the first respondent therein who is the owner of the bus involved in the accident against the same award to the extent it allowed the insurer of the said vehicle to pay and recover the amount payable after effecting payment. In the said circumstances, we have heard the appeals jointly and they are being disposed of by this common judgment. For the sake of convenience, the parties are hereinafter M.A.C.A.Nos.528 & 2331 of 2012 2 referred to in this judgment in accordance with their status in the claim petition, unless otherwise specifically mentioned.

2. For the purpose of a proper disposal of the captioned appeals a succinct narration of the facts that led to the filing of the appeals is required. The petitioner was riding a motor cycle bearing Reg.No.KL-7-9001 through Anchapalam-Azhikode public road on 25.2.2008. When it reached Marapalam junction by about 5 p.m. the bus bearing Reg.No.KL-10-M-529, driven by the second respondent, dashed against the motor cycle and consequently the petitioner sustained injuries. He was immediately taken to Medicare Hospital, Kodungallur. On being referred to Lourdes Hospital, Ernakulam he was admitted therein on the same day itself. He had undergone treatment there as an inpatient till 7.3.2008. It is in the said circumstances that the petitioner filed the above mentioned claim petition seeking a compensation of Rs.1,00,000/- for the injuries sustained by him. In fact, a M.A.C.A.Nos.528 & 2331 of 2012 3 perusal of the claim petition would reveal that the petitioner assessed compensation to the tune of Rs.1,24,000/, but limited the claim to Rs.1,00,000/-. In the claim petition it was specifically averred that he was a businessman and was earning Rs.3,000/- per month. Before the Tribunal respondents 1 and 2 who are respectively the owner and driver of the aforesaid vehicle remained ex parte. The 3rd respondent insurer of the offending vehicle - bus, filed a written statement admitting the existence of a valid policy in respect of the said vehicle and at the same time, disputing the rashness and negligence from the part of the 2nd respondent as the cause of the accident. That apart, it was specifically contended therein that the 2nd respondent driver was not having a valid and effective driving licence as also badge to drive the offending vehicle. In the light of the said averments a specific contention of violation of the policy conditions was also taken up before the Tribunal. However, as an abundant caution, the insurance company has also challenged the quantum of compensation on the M.A.C.A.Nos.528 & 2331 of 2012 4 ground of exorbitancy besides disputing the injuries. Before the Tribunal both the parties did not adduce oral evidence. On the side of the petitioner Exts.A1 to A5 were got marked and on the side of the 3rd respondent Exts.B1 and B2 which are respectively the driving licence particulars and copy of policy in respect of the offending vehicle, were got marked. The Tribunal on evaluation of the evidence on record and appreciating the rival contentions passed the impugned award for a total compensation of Rs.42,538/- with interest at the rate of 7% per annum from the date of petition viz., 2.6.2008 till realisation. The Tribunal permitted the 3rd respondent to pay and then recover the awarded amount. It is in the said circumstances that the captioned appeals have been preferred as noticed hereinbefore, with the aforementioned prayers. It is pertinent to note that the first respondent, the owner of the offending vehicle who remained ex parte before the Tribunal, is challenging the judgment and award only to the extent it permitted the 3rd respondent insurer to pay and recover the amount payable M.A.C.A.Nos.528 & 2331 of 2012 5 under the impugned award, after satisfying the award.

3. We have heard the learned counsel appearing for the petitioner (the appellant in M.A.C.A.No.528/2012), the learned counsel for the 1st respondent (the appellant in M.A.C.A.No.2331/2012) and the learned counsel for the third respondent - the insurer of the offending vehicle. In the light of the contentions raised on behalf of the parties, we are of the view that it is only proper to consider firstly M.A.C.A.No.2331/2012.

4. This appeal is filed by the first respondent in OP (M.V.)No.489/2009 on the file of Motor Accidents Claims Tribunal, Irinjalakuda. It is to be noted that he is the owner of the bus involved in the accident which is virtually, the offending vehicle and he remained ex parte before the Tribunal. The rival contentions before us revealed, absence of dispute regarding the accident, the insurance coverage of the said vehicle and also on the cause of accident as the negligence and rashness from the part of the 2nd respondent, the driver of the offending vehicle - the bus. M.A.C.A.Nos.528 & 2331 of 2012 6

5. The learned counsel appearing for the third respondent - the insurer contends that by permitting the 2nd respondent who did not possess a valid driving licence and valid badge to drive a transport vehicle, the first respondent-owner has violated not only the statutory provisions but also the specific conditions of the policy and therefore, the third respondent Insurance Company, though statutorily liable to pay the awarded amount at the first instance, is entitled to recover the amount paid from the owner of the offending vehicle, the insured. But, the learned counsel for the first respondent, the appellant in this appeal contended that the said contention of the insurer is against the law laid down by the Hon'ble Apex Court in National Insurance Co.Ltd. v. Swaran Singh [2004 (1) KLT 781 (SC)]. While considering the aforesaid question it is to be noted that there is absolutely no dispute regarding the fact that on the date of accident 25.2.2008 the second respondent, the driver, was not having a valid driving licence and also a valid badge to drive a transport M.A.C.A.Nos.528 & 2331 of 2012 7 vehicle. In fact, the said fact is indisputable in the light of Ext.B1.

6. The learned counsel appearing for the first respondent who is the owner of the offending vehicle raised various contentions to mount challenge against the impugned award to the extent it granted the right to pay at the first instance and then, to recover the same amount paid to satisfy the award, to the third respondent - insurance company. The learned counsel submitted that in the appeal it is specifically contended that the first respondent had instructed one counsel to appear on his behalf before the Tribunal. But, at the same time, the fact that none actually appeared on his behalf came to the knowledge of the first respondent only when the revenue recovery proceedings were initiated by the third respondent on the strength of the impugned award, it is further stated therein. Surely, we are not inclined to set aside the award on such reasons. At the same time, we are of the view that the first respondent is certainly entitled to raise all legal M.A.C.A.Nos.528 & 2331 of 2012 8 contentions available to be raised in the light of the materials already available on record. As noticed hereinbefore, the main contention of the learned counsel appearing for the first respondent is that in the light of the dictum laid down by the Hon'ble Apex Court in Swaran Singh's case (supra) the mere fact that there was no valid driving licence to drive a transport vehicle cannot be a reason for the insurer to avoid its statutory liability to indemnify the insurer when there is a valid insurance policy covering the offending vehicle. It is further contended that the absence of badge is only a technical one and therefore that also cannot be a reason for the Insurance Company to wriggle out of the said liability. Virtually the contention of the learned counsel is to the effect that Ext.B1 itself would reveal that the second respondent/driver was having a valid driving licence and a badge though its validity in respect of driving transport vehicles stood expired much before the date of the accident. Such aspects would not and could not take the case on hand outside the purview of Swaran M.A.C.A.Nos.528 & 2331 of 2012 9 Singh's case (supra), it is contended. To buttress his contention, the learned counsel for the first respondent relied on a decision of a Full Bench of this Court in National Insurance Co.Ltd. v. Jisha [2015 (1) KLT 1 (F.B.)] rendered relying on the decision in Swaran Singh's case (supra). In the light of the decision in Jisha's case (supra) it is submitted that a mere technical violation like absence of badge or absence of valid driving licence cannot be a reason for the insurer to avoid the liability to the third party as also to indemnify the insured.

7. Per contra, the learned counsel appearing for the third respondent contended that a careful scanning of the decision in Swaran Singh's case (supra) would reveal that it did not virtually laid down a principle that 'once a licence always a licence'. It is contended that though in the said decision the Hon'ble Apex Court held that the absence of a valid driving licence is not at all a ground for the Insurance Company to avoid of its statutory liability to pay to the third party at the first instance it did not lay down any inviolable M.A.C.A.Nos.528 & 2331 of 2012 10 position that such reasons would not be available to the insurance company for claiming even the right available under Section 149 (4) of the Act, even on establishing violation of statutory/policy condition. In short, it is contended the said decision though emphasized on the liability of the insurer to satisfy the award, in the light of the provisions under Section 149 of the Act, in respect of the third party it did not take away the rights statutorily conferred on the insurer to recover the amount paid to the third party to satisfy the award in terms of Section 149(4) of the Act even on satisfaction of the statutory requirements therefor.

8. We have given anxious consideration to the rival contentions in the light of the decision of the Hon'ble Apex Court in Swaran Singh's case (supra). It is true that even in the absence of a valid driving licence, going by the said decision, the Insurance Company cannot seek for exoneration from the liability to satisfy the award in respect of a third party. But, at the same time the question is M.A.C.A.Nos.528 & 2331 of 2012 11 whether absence of a valid driving licence and valid badge required to drive a transport vehicle, also to be taken as grounds not available to the insurance company concerned to claim the right to recover after satisfying the award in respect of the third party. We have already taken note of the contentions raised by the learned counsel for the first respondent based on the decision in Swaran Singh's case. The learned counsel for the first respondent has submitted that when the Full Bench elaborately considered the decision of the Hon'ble Apex Court in Swaran Singh's case while rendering the decision in Jisha's case (supra) a difference explanation or interpretation of the position based on Swaran Singh's case (supra) is not possible, rather, permissible. But, we are of the considered view that before considering the said contention of the third respondent it is only befitting to have a glance at the decision in Swaran Singh's case. For a proper understanding of the scope of rival contentions made in the light of Swaran Singh's case (supra) it is only worthy to M.A.C.A.Nos.528 & 2331 of 2012 12 refer to the following paragraphs:-

1. Interpretation of Section 149(2)(a)(ii) vis-a-vis the proviso appended to sub-sections (4) and (5) of the Motor Vehicles Act, 1988 is involved in this batch of Special Leave Petitions filed by National Insurance Company Limited (hereinafter referred to as 'insurer') assailing various awards of the Motor Accidents Claims Tribunal and judgments of the High Courts.

13. Before we deal with various contentions raised by the parties it is desirable to look into the legislative history of the provisions for its interpretation. The relevant provisions of the Act indisputably are beneficent to the claimant. They are in the nature of a social welfare legislation.

14. Chapter XI of the Motor Vehicles Act, 1988, inter alia, provides for compulsory insurance of vehicles in relation to the matters specified therefor. The provision for compulsory insurance indisputably has been made, inter alia, with a view to protect the right of a third party.

16. The intention of the Parliament became further evident when in the Motor Vehicles Act, 1939, a new Chapter being Chapter VIIA dealing with insurance of motor vehicles against third party risks was introduced and the beneficent provisions contained in Motor Vehicles Act, 1939 were further made liberal by reason of the Motor Vehicles Act, 1988 and the amendments carried out therein from time to time in aid of the third party claims by way of grant of additional or new rights conferred on the road accident victims.

19. Concededly different types of insurance covers are issued containing different nature of contract of insurance. We are, however, in this batch of cases mainly concerned with third party right under the policy. Any condition in the insurance policy, whereby the right of the third party is taken away, would be void.

Evidently, the observation of the Hon'ble Apex Court in M.A.C.A.Nos.528 & 2331 of 2012 13 paragraph 13 that the provisions under Chapter XI of Motor Vehicles Act are in the nature of a social welfare legislation is in relation to the third parties. The said fact is evident from the first summary findings recorded in paragraph 102 of the said decision which, in so far it is relevant, reads thus:-

"Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles".

Summary finding Nos. (ii) and (vii) therein are as follows:

(ii) "insurer is entitled to raise a defence in a claim petition filed under Section 163A or Section 166 of the Motor Vehicles Act, 1988, inter alia, in terms of Section 149(2)(a)(ii) of the said Act."

(vii) The question as to whether the owner has taken reasonable case to find out as to whether the driving licence produced by the driver, (a fake one or otherwise), does not fulfill the requirements of law or not will have to be determined in each case.

M.A.C.A.Nos.528 & 2331 of 2012 14 We will refer to the other relevant aspects in Swaran Singh's case (supra) a little later after referring to the decision of the Hon'ble Apex Court in Ram Babu Tiwari v. United India Insurance Company Limited and Ors. [(2008) 8 SCC 165] and the rival contentions in the light of the said decision. The learned counsel appearing for the third respondent contended that the real scope of the decision in Swaran Singh's case (supra) was better explained by the Hon'ble Apex Court in Ram Babu Tiwari's case as well.

9. In Ram Babu Tiwari's case (supra) the Hon'ble Apex Court was dealing with the question regarding the right of the insurer to pay and recover in a case where the driver of the of the vehicle was not having a valid driving licence on the date of the accident to cover the day of the accident. In that case before the Hon'ble Apex Court the accident in question had occurred on 27.1.1996. The driver concerned was having driving licence from 11.2.1990 to 10.2.1993 and again from 7.2.1996 to 7.2.1999, but not on M.A.C.A.Nos.528 & 2331 of 2012 15 the date of accident. In fact, he was not having a valid licence for the period 11.2.1993 to 6.2.1996 and his licence was renewed only from 7.2.1996. As contended in this case, on behalf of the insured owner of the vehicle therein, it was contended that the fact that the driver was not having a valid driving licence could not be a reason for the insurer to get absolved of its statutory liability to indemnify the insured. Virtually, it was also contended therein that even in such circumstances the insurer could not claim the liability to pay and recover. It is to be noted that in the judgment of the High Court of Madya Pradesh which was taken in appeal therein, it was held that the Insurance Company was not liable to indemnify the insured in such circumstances. The Apex Court evidently considered its earlier decision in Swaran Singh's case elaborately in Ram Babu Tiwari's case (supra). The relevant provision viz. Section 149 (2) (a) (ii) of the Act was also considered in detail. Paragraphs 11 and 12 of the decision in Ram Babu Tiwari's case are very much relevant in view of the M.A.C.A.Nos.528 & 2331 of 2012 16 contextual situation of this case. They read thus:-

11. Section 147 of the Act mandates obtaining of compulsory insurance in relation to a third party by the owners of the motor vehicles. Section 149 imposes a duty on the insurer to satisfy the judgments and awards against the insured in respect of third party risks. Subsection (2) of Section 149 however postulates that insurance company would have a right to defend the action, inter alia, on a ground that there has been a breach of specified condition of the policy as specified in various sub-clauses; clause (ii) thereof being as under :

" 149. (2)(a)(ii) a condition excluding driving by a named person or persons or by any person who is not duly licensed, or by any person who has been disqualified for holding or obtaining a driving licence during the period of disqualification; or"

12. In view of the aforementioned provisions, in the event a defence on the part of the insurance company that the vehicle involved in the accident was not being driven by a driver having a valid driving licence would be a valid one. After taking note of the interpretations given to the word 'duly licensed' appearing in Section 149 (2) of the Act in Swaran Singh's case the Hon'ble Apex Court observed in Ram Babu Tiwari's case that in Swaran Singh's case it considered the effect of various fact situations therein separately. In Swaran Singh's case it was also held:- "the owner of a motor vehicle in terms of Section 5 of the Act has a responsibility to see that no vehicle is driven except M.A.C.A.Nos.528 & 2331 of 2012 17 by a person who does not satisfy the provisions of Section 3 or 4 of the Act". After noting the same in Ram Babu Tiwari's case the Apex Court went on to consider the question 'what would be the effect of not having a valid driving licence for a long period especially on the date of the accident'. While considering the said question the position obtained from Section 15 of the Act was taken into consideration by the Apex Court in Ram Babu Tiwari's case and then it was held in paragraph 18 thus:-

18. It is beyond any doubt or dispute that only in the event an application for renewal of licence is filed within a period 30 days from the date of expiry thereof, the same would be renewed automatically which means that even if an accident had taken place within the aforementioned period, the driver may be held to be possessing a valid licence. The proviso appended to sub-section (1) of Section 15, however, clearly states that the driving licence shall be renewed with effect from the date of its renewal in the event the application for renewal of a licence is made more than 30 days after the date of its expiry. It is, therefore, evident that as, on renewal of the licence on such terms, the driver of the vehicle cannot be said to be holding a valid licence, the insurer would not be liable to indemnify the insured.

In paragraph 19 of Ram Babu Tiwari's case the Apex Court referred to another earlier decision in National Insurance Co. Ltd. v. Kusum Rai [(2006) 4 SCC 250] and quoted M.A.C.A.Nos.528 & 2331 of 2012 18 paragraph No.14 therein, where the decision in Swaran Singh's case was dealt with, as hereunder:-

"This Court in Swaran Singh's case clearly laid down that the liability of the Insurance Company vis-a-vis the owner would depend upon several factors. The owner would be liable for payment of compensation in a case where the driver was not having a licence at all. It was the obligation on the part of the owner to take adequate care to see that the driver had an appropriate licence to drive the vehicle".

Further the Apex Court opined in Kusum Rai's case (supra) thus:

"In a case of this nature, therefore, the owner of a vehicle cannot contend that he has no liability to verify the fact as to whether the driver of the vehicle possessed a valid licence or not".

After noting the said opinion in paragraph 20 of Ram Babu Tiwari's case the Hon'ble Apex Court held as follows:

"The principle laid down in Kusum Rai's case has been reiterated in Ishwar Chandra v.

M.A.C.A.Nos.528 & 2331 of 2012 19 Oriental Insurance Co. Ltd. [(2007) 10 SCC 650]. Then, paragraph 9 of Ishwar Chandra's case made after referring to sub-section (1) of Section 15 of the Act was quoted with approval, thus:

"9. From a bare perusal of the said provision, it would appear that the licence is renewed in terms of the said Act and the rules framed thereunder. The proviso appended to Section 15(1) of the Act in no uncertain terms states that whereas the original licence granted despite expiry remains valid for a period of 30 days from the date of expiry, if any application for renewal thereof is filed thereafter, the same would be renewed from the date of its renewal. The accident took place 28.4.1995. As on the said date, the renewal application had not been filed, the driver did not have a valid licence on the date when the vehicle met with the accident".

It is pertinent to note that after referring to the decisions in Swaran Singh's case (supra), Kusum Rai's case as also Ishwar Chandra's case the Hon'ble Apex Court in Ram Babu Tiwari's case dismissed the appeal filed against the judgment upholding the contention of the Insurance Company that it was not liable to indemnify the insured as the driver was not having a valid driving licence on the date of the accident. In fact, in that case the Insurance Company was permitted to pay and recover, by the High Court. It is thus obvious that even after referring to its earlier decision M.A.C.A.Nos.528 & 2331 of 2012 20 in Swaran Singh's case the Hon'ble Apex Court relied on two of its subsequent decisions viz., in Kusum Rai's case (supra) and Ishwar Chandra's case (supra) found that when the driver of a vehicle which involved in an accident was not having a valid driving licence and its owner failed to discharge his statutory burden under Section 5 of the Act the Insurance Company, the Tribunal could certainly make the insurer to satisfy the award in respect of a third party at the first instance and then to recover the same from the owner.

10. In the contextual situation obtained from Ram Babu Tiwari's case it is also not inapposite to refer to another aspect considered by the Apex Court in Swaran Singh's case (supra). In paragraph 95 thereof the Hon'ble Apex Court made the following conclusions:-

"96: It is, therefore, evident from the discussions made hereinbefore that the liability of the insurance company to satisfy the decree at the first instance and to recover the awarded amount M.A.C.A.Nos.528 & 2331 of 2012 21 from the owner or driver thereof has been holding the field for a long time.

97: Apart from the reasons stated hereinbefore the doctrine of stare decisis persuades us not to deviate from the said principle.

98. It is well settled rule of law and should not ordinarily be deviated from (See The Bengal Immunity Company Limited v. State of Bihar [(1955) 2 SCR 603 at 630-632), Keshav Mills Co. Ltd. v. Commissioner of Income-Tax, Bombay North [(1965) 2 SCR 908 at 921-922), Union of India v. Raghubir Singh ((1989) 3 SCR 316 at 323, 327,

334), Gannon Dunkerley and Co. v. State of Rajasthan and Others ((1993) 1 SCC 364), Belgaum Gardeners Co-op. Production Supply and Sale Society Ltd. v. State of Karnataka (1993 Supp (1) SCC 96) and Hanumantappa Krishnappa Mantur v. State of Karnataka (1992 Supp (2) SCC 213)).

11. In the case on hand the third respondent - M.A.C.A.Nos.528 & 2331 of 2012 22 insurance company produced Ext.B1 which is the driving licence particulars of the second respondent, the driver of the offending vehicle to establish its contention that the 2nd respondent had no valid driving licence to drive a transport vehicle on the date of the accident viz., on 25.2.2008 and in fact, it would go to show that the validity of his driving licence to drive transport vehicle and the badge required therefor, expired in the month of July, 2007 and he got them renewed only on 18.10.2008 with effect from 25.9.2008 only. It is thus obvious that the third respondent has succeeded in the case on hand to prove that the 2nd respondent had no valid driving licence and badge to drive a transport vehicle for more than one year and more particularly, there was no valid driving licence and badge on 25.2.2008, the date of the accident. Evidently, the 2nd respondent had applied for their renewal only more than six months after the incident. In such circumstances, how can it be said that the first respondent-owner had discharged the responsibility in terms of section 5 of the Act to see that M.A.C.A.Nos.528 & 2331 of 2012 23 his vehicle was not driven by a person who did not satisfy the provisions under section 3 of the Act. The Apex Court in Swaran Singh's case observed in paragraph 77 that in a given case, the driver of the vehicle may not have any hand at all in the accident and gave examples as, a case where an accident takes place owing to a mechanical fault or vis major. Vis major means 'irresistible force or Act of God'. But, when the accident occurred due to the rashness or negligence of the driver of the vehicle the aforesaid questions regarding the validity of the licence and whether or not reasonable case to discharge the responsibility in terms of section 5 of the Act, by the owner, have to be considered. As noticed hereinbefore the first respondent remained ex-parte before the Tribunal. True that he attempted to explain the circumstances under which he remained ex-parte therein. But at the same time even after a careful scrutiny of the pleadings in this appeal, we are of the view that there is absolute absence of any pleading which would indicate that he discharged the statutory M.A.C.A.Nos.528 & 2331 of 2012 24 burden under Section 5 of the Act. In such circumstances, the irresistible conclusion is that he had failed to discharge the said statutory liability.

12. In the circumstances mentioned hereinbefore, we are of the view that the contention of the learned counsel for the third respondent is well founded and in the light of the decisions referred supra, in a case where there is no valid driving licence for the driver and when the insurance company succeeded in establishing that the driver was not having a valid driving licence and the insured owner had failed to discharge his statutory burden under Section 5 of the Act, the right available to the insurance company in terms of provisions under Section 149(4) cannot be taken away and in fact it is very much available. It is that right which was virtually reserved as per the impugned judgment.

13. The upshot of the discussions as above is that the impugned award to the extent it ordered the insurer to pay at the first instance to the third party and permitted to M.A.C.A.Nos.528 & 2331 of 2012 25 recover the same from the insurer invites no interference. In the said circumstances M.A.C.A.No.2331/2012 is liable to fail.

14. We will now consider the claim for enhancement of the compensation awarded in O.P.M.V.No.489/2008 made in the former appeal. As noticed hereinbefore this appeal has been preferred by the injured/petitioner. The contention is that the Tribunal had erred in fixing the monthly income of the petitioner for the purpose of computing the compensation to which he is entitled. It is contended that though in the claim petition it was specifically stated that the appellant was a businessman the Tribunal took the monthly income only at Rs.2,500/-. While considering the tenability of the said contention the specific pleading raised by the petitioner in the claim petition has to be looked into. True that he was stated therein that he was a businessman. But at the same time it was evident that he claimed therein that he was earning a monthly income of only Rs.3,000/-. The Tribunal took note of the fact that M.A.C.A.Nos.528 & 2331 of 2012 26 despite taking up such contentions regarding the occupation and income the petitioner had failed to adduce any evidence whatsoever to prove the occupation and income. He did not adduce any documentary evidence and he had not mounted the box. In such circumstances, though we are of the view that the Tribunal cannot be said to have committed a legal error, we are of the view that while fixing the quantum of compensation payable in respect of a particular application filed under Section 166 of the Act, the court or the Tribunal has a duty to pay just compensation in terms of the provisions of Section 168 of the M.V Act commensurate with the injuries sustained. While discharging such burden we cannot lost sight of the decision of the Apex Court in Ramachandrappa v. Manager, Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]. That was a case where for the purpose of computing the compensation in respect of an accident which occurred in the year 2004 the Apex Court fixed notionally the monthly income of a coolie of at M.A.C.A.Nos.528 & 2331 of 2012 27 Rs.4,500/-.

15. The accident in question occurred years thereafter precisely on 25.2.2008. In such circumstances despite the failure on the part of the petitioner to establish his occupation and income, we are inclined to fix notionally the income of the appellant for calculation purpose as Rs.4,500/-. The petitioner has a further grievance that despite the production of Ext.A4 disability certificate the Tribunal disregarded the same and had not granted compensation for incurring disability in the accident.

16. Going by Ext.A3 discharge summary and the wound certificate, the petitioner had sustained the following injuries:

Lacerated wound on right pinna, lacerated wound right side of forehead, subdural haematoma right fronto parietal region, focal contusion of the right frontal cortex and sub arachnoid haemorrhage with mass effected, fracture on right occipital bone, right temporal haematoma, minimal right parietal M.A.C.A.Nos.528 & 2331 of 2012 28 subarachnoid haemarrohage, left parietal calvariel soft tissue thickening due to trauma.

17. In this context it is to be noted that Ext.A4 is not a disability certificate issued by a duly constituted Medical Board. The doctor who issued the same was also not examined. Those aspects were specifically referred to by the Tribunal. In such circumstances, we do not find any reason to hold that the Tribunal had committed any legal error and we have no hesitation to decline interference with the findings of the Tribunal in that regard. In the light of the fixation of the monthly income by us viz., Rs.4,500/- the amount payable under the head loss of earning is to be reassessed as the Tribunal took the monthly income only at Rs.2,500/-. On such reassessment, the petitioner is entitled to get an amount of Rs.6,000/- additionally as we have maintained the period taken for that purpose by the Tribunal viz., three months. Towards bystander's expenses the petitioner claimed an amount of Rs.1,000/- and the Tribunal had granted the same only. Taking into account M.A.C.A.Nos.528 & 2331 of 2012 29 the fact that the accident occurred in the year 2008 and considering the cost of living and price index during the relevant period and taking note of the period of hospitalization viz. 11 days we are inclined to grant Rs.200/- per day towards bystander's expenses. In the light of such computation, the petitioner would be entitled to get an additional amount of Rs.1,200/- under that head. Towards transportation expenses the appellant claimed an amount of Rs.3,000/- and the Tribunal granted only an amount of Rs.1,000/-. Taking note of the injuries there is no doubt that he must have had at least one review. In such circumstances, taking note of the possible number of visit to hospital, we are inclined to grant Rs.1,000/- more under that head. Towards pain and suffering an amount of Rs.20,000/- was claimed and the Tribunal granted an amount of Rs.15,000/-. Taking note of the nature of the injuries sustained and we are of the view that the petitioner is certainly entitled to get the entire amount claimed. In the said circumstances we are awarding an additional amount M.A.C.A.Nos.528 & 2331 of 2012 30 of Rs.5,000/- under that head. Towards extra nourishment taking note of the period of hospitalization, we are of the view that the petitioner is entitled to get an amount of Rs.100/- per day and accordingly an amount of Rs.600/- more is granted. Though the schedule of compensation given in the judgment would show that the petitioner was granted an amount of Rs.5,000/- towards loss of disability in the light of the specific finding of the Tribunal in paragraph No.7 of the judgment which was confirmed by us it cannot be said that the Tribunal granted compensation under the head loss of disability and in such circumstances, the said amount of Rs.5,000/- granted thereunder, is treated as compensation for loss of conveniences and comforts during the period of treatment. In the light of the aforesaid discussions, the petitioner is entitled to get an enhanced amount of Rs.18,800/-. In the result:-

18. M.A.C.A.No.2331 of 2012 is dismissed. M.A.C.A.No.528/2012 is allowed. An amount of Rs.18,800/- (Rupees eighteen thousand eight hundred only) is granted M.A.C.A.Nos.528 & 2331 of 2012 31 as additional compensation. The additional compensation will carry interest at the rate of 8% per annum from the date of petition till realization. The third respondent shall deposit the said amount within a period of three months from the date of receipt of a copy of this judgment. It is made clear that since we have already confirmed the judgment to the extent it granted liberty to the third respondent to pay at the first instance and to recover the same from the insured-owner after effecting payment of the amount due, the insurer will be entitled to recover the amount to be paid under this judgment from the first respondent, after paying the amount within the above stipulated time.

There will be no order as to costs in both the appeals.

Sd/-

C.T.RAVIKUMAR Judge Sd/-

                                  K.P.JYOTHINDRANATH
TKS/shg/                                      Judge
                                               //True copy//


                                               P.A. TO JUDGE

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