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2018 Supreme(Online)(KER) 36233
HIGH COURT OF KERALA
K VINOD CHANDRAN, J
SHAJI @ SAJU – Appellant
Versus
JOY E P , Advocate -SRI K PAUL KURIAKOSE – Respondent
MOTOR ACCIDENT CLAIMS APPEAL 223/2005
Insurance companies cannot avoid indemnification due to the driver's lack of qualifications, and compensation must reflect accurate loss assessments.
Headnote:
Appeal - Compensation Claim - Insurance Act Section List - This judgment clarifies the liability of insurance companies in compensation claims, particularly regarding endorsements on drivers’ qualifications and the calculation of lost earnings due to injury, emphasizing the need for rigorous adherence to statutory provisions and judicial precedents.
Fact of the Case:
The appellant, a rubber tapper, sustained injuries in an accident involving an auto-rickshaw. The Tribunal initially awarded compensation but limited certain claims, prompting the appellant to appeal for enhancement, while the driver filed a cross-objection regarding liability.
Issues: Whether the cross-objection by the driver is maintainable against the appellant's appeal for enhancement, and the proper assessment of compensation regarding loss of earnings and disability.
Ratio Decidendi: Insurance companies remain liable to indemnify parties in compensation claims irrespective of driver qualifications, and courts must adequately assess and enhance compensation based on prevailing judicial decisions.
Final Decision: The appeal is allowed; the cross-objection is rejected.
JUDGMENT
The appellant is the claimant and the cross-
objector is the driver of the vehicle, who is the 2nd respondent. The 1st respondent/owner and the 2nd respondent driver were not served in the appeal. In the nature of the orders to be passed in the above appeal, this Court is of the opinion that there need be no notice on the 1st respondent, especially since the 2nd respondent submits that the entire amounts awarded by the Tribunal had been recovered from him, against which the cross-
objection is filed.
2. The cross-objection is by the driver of the vehicle, from whom recovery is said to have been effected. At the outset it has to be noticed that as against an appeal for enhancement, there cannot be a cross-objection filed to disturb the liability cast on the registered owner or the driver for reason of violation of policy. It has to be noticed that the award, which has been & 4 challenged herein, does not grant such pay and recovery. It is the submission of the learned Counsel for the Insurance Company that subsequent to the award, an I.A. was filed by the Insurance Company alleging that the driver does not have a badge and in such circumstances, there was an amendment made to the award, thus granting the Insurance Company the power to recover the amounts paid by the injured from the registered owner or the driver. The cross-objection all the same is not maintainable and shall stand dismissed following the dictum in Manojkumar v. Subramanian [2010 (2) KLT 893].
3. Even then the appeal of the claimant for enhancement can be allowed deleting the liability cast on the registered owner and driver since as of now there is a specific ruling of the Hon'ble Supreme Court in Mukund Dewangan v. Oriental Insurance Company Limited [2017 (3) KLT 1000 (SC)], that the Insurance Company cannot be absolved of its liability to indemnify, merely for & 5 the reason of absence of badge.
4. The further ground is with respect to enhancement. The appellant was traveling in an auto-rickshaw when the accident occurred. The auto-rickshaw is said to have overturned, causing the accident which, according to the claimant, was by reason of the negligence of the auto-rickshaw driver. The Tribunal has also found negligence on the auto-rickshaw driver. The petitioner sustained comminuted fracture left middle, third of shaft of left femur. The Medical Certificate issued by the Mission Hospital, Kolencherry was produced to prove the same. The injury noted is closed transverse fracture, mid shaft of left femur. The appellant had twice gone to the hospital on 01.09.2001 and 05.09.2001. The appellant, who was aged 33 years, claimed to be a rubber tapper, getting a monthly income of Rs.4,500/-. The Tribunal adopted only 1,500/- as the monthly income. The accident occurred in the year 2001. In any event, the Hon'ble Supreme Court had found & 6 Rs.4,500/- as the monthly income of a coolie in the year 2004 in Ramachandrappa v. Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]. In such circumstances, the income as asserted by the appellant at Rs.3,500/- itself can be accepted, since the instant accident occurred in the year 2001.
5. The appellant was also certified as being disabled @ 11% whole body disability. PW1 was the Doctor, who issued the Disability Certificate produced at Ext.A6. The Doctor deposed that the appellant is physically handicapped due to post traumatic ankylosis left knee following old fracture-shaft of femur left, with interlocking nail done. The Tribunal, on the ground that the 11% disability was not specifically stated to be of the whole body, adopted disability at 6%. This Court does not find any reason to deviate from such adoption, especially since there was no independent evidence as to the functional disability of the appellant. With respect to loss & 7 of earning, the Tribunal has granted compensation only for three months, while it was specifically found that the appellant was advised rest for six months.
6. The following
