Allowed

P.R.Reghunandan v. Fr.Jacob John and Another

Kerala HC7 Jun 2023MACA/2646/2010

Case brief

AI extract

What is this about?

In this motor accident appeal, the High Court enhanced the compensation awarded by the Tribunal due to inadequate assessment of loss of earning and permanent disability. The Court directed the insurer to pay the enhanced amount first and recover it from the owner who permitted an unlicensed driver.

What did the court decide?

The Insurance Company is directed to deposit enhanced compensation of Rs.1,33,054/- with interest at 7.5% per annum within two months.

P.R.Reghunandan Vs Fr.Jacob John and Another — Motor Accident Claims | Kerala HC (2023)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT

¶2

THEHONOURABLEMRS.JUSTICESOPHYTHOMAS

¶3

WEDNESDAY,THE7THDAYOFJUNE2023/17THJYAISHTA,1945

¶4

MACANO.2646OF2010

¶5

AGAINSTTHEORDER/JUDGMENTINOPMV1548/2002OFMOTOR
ACCIDENTSCLAIMSTRIBUNAL(ADDITIONALDISTRICT&SESSIONS
JUDGE),MAVELIKKARA

¶6

APPELLANT/PETITIONER:

¶7

P.R.REGHUNANDAN
AGED52YEARS,S/O.P.A.RAGHAVAN
RESIDINGATCHAKKITTATHILHOUSE,
KARAKKAD,CHENGANNUR.

¶8

BYADVS.
SRI.SHAJITHOMASPORKKATTIL
SRI.BINUPAUL
SRI.T.V.VINU

¶9

RESPONDENTS/RESPONDENTS 1 & 3:

¶10

1 FR.JACOB JOHN,

¶11

KAUTHICHANTHUPADINJARETHIL,ALA,
CHENGANNUR-689121.

¶12

2 THE DIVISIONAL MANAGER, ORIENTAL INSURANCE CO. LTD., THIRUVALLA-689101.

¶13

BYADVS.
SRI.P.JACOBMATHEW
SRI.MATHEWSJACOB(SR)

¶14

THISMOTORACCIDENTCLAIMSAPPEALHAVINGBEEN
FINALLYHEARDON31.05.2023,THECOURTON07.06.2023
DELIVEREDTHEFOLLOWING:

MACA No.2646 of 2010

SOPHY THOMAS, J.

MACA No.2646 of 2010

¶19

Dated this the 7^th day of June, 2023

¶20

J U D G M E N T

¶21

The claimant in OP(MV) No.1548 of 2002 on the file of

¶22

Motor Accidents Claims Tribunal, Mavelikkara, is the appellant herein, challenging the award dated 18.08.2010, on the ground of inadequacy of compensation.

¶23

On 26.05.2002 at about 1.30 p.m, while the appellant was riding his motorcycle through Puthur-Eanathu road carrying his wife on the pillion seat, KL-4J-4190 car driven by the 2^nd respondent, in a rash and negligent manner, knocked them down and both of them sustained injuries thereby. The appellant approached the Tribunal claiming compensation of Rs.8,45,000/-. But, the Tribunal awarded only Rs.1,19,640/-. Contending that the Tribunal did not award ‘just compensation’, he filed the above appeal.

¶24

The 1^st respondent was the owner, 2^nd respondent was the driver, and 3^rd respondent was the insurer of the offending

¶25

MACA No.2646 of 2010

¶26

¶27

car. Respondents 1 and 2 did not contest the case and they remained ex parte before the Tribunal. The 3^rd respondent/ insurer admitted the policy. But, according to them, the 2^nd respondent had no driving licence to drive the car, and since there was violation of the policy conditions, the Company was not liable to indemnify the insured.

¶28

PWs 1 and 2 were examined and Exts.A1 to A24 were marked from the side of the appellant/claimant and no evidence, either oral or documentary, was adduced from the side of the respondents.

¶29

Learned Tribunal, on analysing the facts and evidence, awarded compensation of Rs.1,19,640/-, and the liability to compensate the claimant was fixed on the 1^st respondent/owner, as the 2^nd respondent/driver did not produce his driving licence in spite of several opportunities given to him, and after drawing an adverse inference against him. The Insurance Company was exonerated from indemnifying the insured, as he permitted the 2^nd respondent to drive the car, without having driving licence. Learned Tribunal permitted the Insurance Company to get

¶30

MACA No.2646 of 2010

¶31

¶32

reimbursement of the award amount from the owner of the offending car.

¶33

In the appeal, only the owner and insurer were arrayed as respondents 1 and 2. The 1^st respondent/owner opted to remain absent in spite of paper publication. The 2^nd respondent/ insurer entered appearance through their counsel.

¶34

Heard learned counsel appearing for the appellant and 2^nd respondent.

¶35

Now let us see whether there is anything warranting interference of the award of the Tribunal.

¶36

According to the appellant, he was an Electrician aged 44 years working in Prabhuram Mills, Chengannur, under Kerala State Textile Corporation Limited. He was getting monthly salary of Rs.6,200/-. But, the Tribunal fixed his notional income @ Rs.3,000/- only and loss of earning was assessed only for six months. Ext.A16 certificate will show that he was drawing monthly salary of Rs.5,632.79/-. It was issued by the General Manager of Prabhuram Mills, functioning under Kerala State Textile Corporation Limited. So, the Tribunal could not be

¶37

MACA No.2646 of 2010

¶38

¶39

justified in fixing his notional income @ Rs.3,000/- per month, when Ext.A16 certificate was there to prove his monthly salary @ Rs.5,633/-, on the ground that the author of that certificate was not examined. That certificate will further show that, the appellant was on leave for a period of one year, and no wages were paid to him during that period. Even then the Tribunal assessed loss of earning for a period of six months only. So, that part of the award is liable to be set aside and the appellant is entitled for loss of earning @ Rs.5,633/- for a period of one year. Accordingly, the Tribunal ought to have awarded Rs.67,596/- under the head ‘loss of earning’, but awarded only Rs.18,000/-. So, the appellant is entitled to get the balance amount of Rs.49,596/- under that head.

¶40

The appellant had suffered multiple fractures and lacerated wounds including comminuted fracture of shaft of femur. He was hospitalised for about 25 days and he had undergone surgical procedures also. Learned Tribunal awarded compensation of Rs.30,000/- under the head ‘pain and suffering’ against his claim of Rs.1 lakh. Considering the nature of injuries

¶41

MACA No.2646 of 2010

¶42

¶43

suffered and the period of hospitalisation, this Court is inclined to award Rs.10,000/- more under the head ‘pain and suffering’.

¶44

For loss of amenities, the Tribunal awarded only Rs.5,000/- against his claim of Rs.20,000/-. Ext.A14 disability certificate was to the effect that he had suffered permanent disability of 23%. But, the Tribunal found that the said certificate was not issued by a Medical Board and the Doctor who issued the said certificate was not examined also. So, the Tribunal fixed his disability at 11%. This Court finds no irregularity in the Tribunal fixing the disability of the appellant as 11%, as Ext.A14 certificate was not issued by a Medical Board, and the Doctor who issued the same was not examined. Even then, since the appellant was found to be having disability of 11%, the compensation of Rs.5,000/- awarded under the head ‘loss of amenities’ does not seem to be reasonable, and so, this Court is inclined to enhance the same by Rs.5,000/-.

¶45

Learned Tribunal assessed compensation for disability of 11%, taking the monthly income of the appellant @ Rs.3,000/-. Since this Court accepted Ext.A16 salary certificate

¶46

MACA No.2646 of 2010

¶47

¶48

of the appellant, and the multiplier applicable as 14, instead of 9 applied by the Tribunal, as the appellant was aged only 44, the compensation for disability can be reworked as Rs.1,04,098/-(5633x12x14x11/100). He was already awarded compensation of Rs.35,640/under the head ‘permanent disability’ and so, the balance entitled is Rs.68,458/-.

¶49

The compensation awarded under all other heads seem

¶50

to be reasonable and it needs no interference.

¶51

Head of claim (1)	Amount awarded by the Tribunal (2)	Amount awarded in appeal (3)	Difference to be drawn as enhanced compensation (4)
Loss of earning	Rs.18,000/-	Rs.67,596/-	Rs.49,596/-
Pain and suffering	Rs.30,000/-	Rs.40,000/-	Rs.10,000/-
Loss of amenities	Rs.5,000/-	Rs.10,000/-	Rs.5,000/-
Permanent disability	Rs.35,640/-	Rs.1,04,098/-	Rs.68,458/-
Total	Rs.88,640/-	Rs.2,21,694/-	Rs.1,33,054/-

¶52

So, the appellant is entitled to get enhanced compensation of

¶53

Rs.1,33,054/-.

¶54

As already stated, the driver of the offending car had

¶55

no driving licence to drive the car and since there was violation of

¶56

MACA No.2646 of 2010

¶57

¶58

the policy conditions, the Insurance Company was not liable to indemnify the insured, as found by the Tribunal. There is no challenge against that finding, either by the owner or by the driver. At the same time, it is admitted that the offending car was having valid policy as on the date of accident. Considering that fact, the learned Tribunal directed the Insurance Company to pay the compensation initially to the appellant, and then to recover the same from the owner of the car. Since that finding is not under challenge, it has to be confirmed, permitting the Insurance Company to pay the compensation to the appellant initially and then to recover the same from the 1^st respondent herein, who is the owner of the car.

¶59

In the result, the 2^nd respondent/insurer is directed to deposit the enhanced compensation of Rs.1,33,054/- in the Bank Account of the appellant with interest @ 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

¶60

MACA No.2646 of 2010

¶61

¶62

O.M.No.D1/62475/2016 dated 07/11/2019 after deducting the

¶63

liabilities, if any, of the appellant towards Tax, balance court fee and legal benefit fund. The 2^nd respondent/Insurance Company

¶64

is at liberty to recover the amount so deposited, from the

¶65

1^st respondent and his assets.

¶66

The appeal is allowed accordingly. No order as to costs.

¶67

Sd/-

¶68

SOPHY THOMAS JUDGE

¶69

smp

P.R.Reghunandan v. Fr.Jacob John and Another

Case brief

What is this about?

What did the court decide?

P.R.Reghunandan v. Fr.Jacob John and Another

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Thomas J.Unniyadan Vs R.Bindu

Bindhu J. Vs K.Preetha

Badharudheen & Anr. Vs Deepu K. Mathew & Ors.

K.C.Narayanan Vs Rias Ashraf Sulfikkar & Others

Konappilakkal Vadakkethalakkal Abdurahim Vs Palakkal Abdul Hameed @ Abdul Majeed

Vineesh,S/O.Bhaskaran Vs Savithry & 4 Others