Allowed

Biju Thomas v. Joshy

Kerala HC9 Jun 2014MACA/118/2009

Case brief

AI extract

What is this about?

The High Court enhanced the compensation awarded to the appellant for injuries sustained in a motor accident. Additionally, the court held that the insurer must pay the award and recover the amount from the insured vicariously, rather than being fully exonerated due to the insured's lack of a license.

What did the court decide?

Appeal allowed in part. Additional compensation of `5,000/-` granted. Insurer to pay the total award with interest and recover from respondent 1.

Biju Thomas Vs Joshy — Motor Accident Claims | Kerala HC (2014)

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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 B.KEMAL PASHA

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MONDAY, THE 9TH DAY OF JUNE 2014/19TH JYAISHTA, 1936

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MACA.No. 118 of 2009 ( )

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OPMV 926/2004 of MACT, IRINJALAKUDA

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APPELLANT:

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BIJU THOMAS, S/O.VADAKKUMPADAN THOMAS ELINJIPRA - CHOWKKA DESOM, KODASSERY VILLAGE ELINJIPRA PO, MUKUNDAPURAM TALUK, THRISSUR DISTRICT.

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BY ADVS.SRI.P.V.BABY SRI.A.N.SANTHOSH

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RESPONDENTS:

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JOSHY, S/O. PARAKKA VARGHESE PADUVAPURAM PO.

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THE UNITED INDIA INSURANCE CO. LTD SOUTH JUNCTION, CHALAKUDY.

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R2 BY ADV. SRI.P.MURALEEDHARAN

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 09-06-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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B.KEMAL PASHA J.

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- - - - -- - - - M.A.C.A. No.118 of 2009

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Dated this the 9^th day of June, 2014

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JUDGMENT

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Dissatisfied with the award in O.P.(M.V.) No.926 of 2004

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of the Motor Accidents Claims Tribunal, Irinjalakuda, the petitioner has come up in appeal.

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The appellant, while walking through the road was

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knocked down by the motor bike that was being ridden by the first respondent, which was covered by an insurance policy issued by the second respondent. The appellant sustained serious injuries including zygomatic body fracture and abrasions. At first, he was admitted at St.James Hospital, Chalakudy, from where he was taken to the Elite Mission Hospital, Thrissur, where he continued treatment as inpatient for 3 days. The Tribunal fixed an amount of

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`35,600/- with interest at the rate of 7% per annum from the date

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M.A.C.A. No.118 of 2009

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of petition till the date of realisation as compensation. Further based on the specific contention taken by the second respondent that the first respondent was not holding any valid driving license at the time of accident, the Tribunal has chosen to exonerate the second respondent from any liability.

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Heard the learned counsel for the appellant. According to

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the learned counsel for the appellant, the appellant was a 28 year old man at the time of accident and he was a mechanic by profession and was earning 5,000/- per month. The Tribunal has taken his monthly income as 2,000/-, which is too low. On hearing the learned counsel for the appellant, this court is of the

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view that the monthly income of the appellant can be fixed at 3,500/- as on the date of accident and therefore two months loss of earnings will come to 7,000/-. The amount of `4,000/- arrived

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at by the Tribunal under the head of loss of earnings has to be enhanced to `7,000/-. Even though a disability certificate showing

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M.A.C.A. No.118 of 2009

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a disability of 7% has been produced by the appellant, the Tribunal has not accepted it. It seems that during the treatment the depressed bone has been elevated and there is no dis-figuration also. At the same time, the pain and suffering of the appellant has to be taken care of. The Tribunal has granted an amount of 10,000/- towards pain and suffering. This court is of the view that a slight increase has to be made and the same can be fixed at 12,000/-. On going through the other heads under which amount of compensation has been fixed by the Tribunal, this court is of the view that the same do not warrant any interference. Matters being so, the appellant is entitled to an amount of `5,000/- more as additional compensation, with interest.

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Regarding the next aspect, it seems that the second respondent has admitted the insurance policy, issued to the vehicle.

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The case of the insurer is that the first respondent was not holding any valid driving license at he time of accident. True that, it is a

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M.A.C.A. No.118 of 2009

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violation of the policy conditions. Matters being so, instead of exonerating the second respondent from all liabilities, the Tribunal ought to have ordered the second respondent to pay the amount to the appellant and to recover it from the first respondent. The total exoneration of the second respondent from any liability has resulted in substantial miscarriage of justice.

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In the result, this appeal is allowed in part and an amount of `5,000/- more, is arrived at, as enhanced compensation to the appellant. The second respondent shall pay the said amount, as well as, the amount arrived at by the Tribunal in the impugned award, along with interest at the rate of 7% per annum, with proportionate cost within two months. The second respondent is permitted to recover the amount from the first respondent.

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Sd/-

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B.KEMAL PASHA , JUDGE

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// TRUE COPY //

Biju Thomas v. Joshy

Case brief

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Biju Thomas v. Joshy

Case brief

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