Allowed

Ismail Kunju , v. the Divisional Manager

Kerala HC21 Feb 2024MACA/1682/2012

Case brief

AI extract

What is this about?

In an appeal against the Motor Accidents Claims Tribunal's award of Rs.77,000, the High Court enhanced the monthly income from Rs.2,000 to Rs.3,000 based on testimony. Consequently, the total compensation was increased by granting an additional Rs.49,720 across heads of disability, loss of earnings, pain and suffering, and loss of amenities.

What did the court decide?

Award of the Motor Accidents Claims Tribunal modified by granting additional compensation of Rs.49,720 to be deposited by the insurer.

Ismail Kunju , Vs the Divisional Manager — Motor Accident Claims | Kerala HC (2024)

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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 ZIYAD RAHMAN A.A.

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WEDNESDAY, THE 21^ST DAY OF FEBRUARY 2024 / 2ND PHALGUNA, 1945

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MACA NO. 1682 OF 2012

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AGAINST THE AWARD DATED 23.02.2012 IN OP(MV) 401/2007 OF MOTOR

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ACCIDENT CLAIMS TRIBUNAL, KOLLAM

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APPELLANT/PETITIONER:

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ISMAIL KUNJU, S/O.IBRAHIM KUTTY, SEENATH MANZIL, MANAKKARA, SASTHAMCOTTA.

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BY ADV PRATHEESH.P

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RESPONDENT/3RD RESPONDENT:

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1 THE DIVISIONAL MANAGER , M/S. NEW INDIA INSURANCE CO.LTD., KOLLAM-691001.

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*ADDL.2 SURENDRAN,

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PALOTTU MELATHIL, ELAMBAL, PUNALUR *( IS IMPLEADED AS ADDL. 2ND RESPONDENT AS PER ORDER DATED 12.3.2018 IN IA NO. 865/18 IN MACA 1682/12)

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BY ADVS. M.T.SURESH KUMAR RAJI T.BHASKAR MANJUSHA K(K/000191/2018) SREELAKSHMI SABU(K/000200/2020) RESWIN A. KHADIR(K/000774/2022)

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THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 21.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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MACA NO. 1682 OF 2012

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JUDGMENT

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The appellant was the petitioner in OP(MV)No.401/2007 the files of the Motor Accidents Claims Tribunal, Kollam. The said claim petition was submitted by him seeking compensation for the injuries sustained in a motor accident that occurred on 09.12.2006. The accident occurred when the autorickshaw in which he was travelling as a passenger, capsized due to the rash and negligent driving of the 2nd respondent in the claim petition. The 1st respondent in the claim petition was the owner of the said autorickshaw and the 3rd respondent in the claim petition was its insurer. The appellant was aged 49 years and was a businessman with a monthly income of Rs.2500/-. According to him, he sustained serious injuries and the claim petition was submitted in such circumstances.

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The 1^st respondent in the claim petition contended that, he was not the owner of the said vehicle. According to him, he sold the said vehicle on 24.06.2001 to one Sanil Kumar. It was also contended that, the 2^nd respondent in the claim petition was not his employee and thus the liability to pay the compensation was disputed by him.

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The 2^nd respondent in the claim petition did not contest the matter and the 3^rd respondent in the claim petition filed a written statement admitting the coverage of policy for the said

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MACA NO. 1682 OF 2012

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vehicle. However, it was contended that, the 2^nd respondent in the claim petition was driving the vehicle without any valid driving licence to drive the autorickshaw. The police had charge-sheeted him for the offence under Section 3(1) r/w Section 181 of the Motor Vehicles Act. Therefore, the violation of policy conditions was urged.

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The evidence in this case consists of oral testimony of PW1 and as documentary evidence, Exts.A1 to A10 were marked from the side of the appellant. The disability certificate issued by the Medical Board was marked as Ext.C1. From the side of the respondents, RWs.1 and 2 were examined and Exts.B1 and B2 were marked.

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The Tribunal after appreciating the materials placed on record, arrived at the conclusion that the accident occurred due to the negligence on the part of the 2^nd respondent in the claim petition. It was also found that the 2^nd respondent in the claim petition did not have a valid driving license as on the date of the accident. With regard to the contention raised by the 1^st respondent in the claim petition as to the ownership over the said vehicle, it was found that as the registration of the vehicle stood in the name of the 1^st respondent in the claim petition at the time of the accident, he was held liable to pay the compensation along with the other respondents. The quantum of compensation was

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MACA NO. 1682 OF 2012

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fixed as Rs.77,000/- and the said amount was directed to be deposited by the 3^rd respondent in the claim petition, the insurer of the said autorickshaw, with interest @7.5% per annum from the date of petition till realization with the cost of Rs.1000/-. The 3^rd respondent in the claim petition was permitted to recover the said compensation from the 1^st respondent in the claim petition, as it was found that there was a violation of policy conditions. This appeal is submitted by the appellant/claimant in such circumstances seeking enhancement of compensation.

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Heard Sri.Pratheesh P., the learned counsel appearing for the appellant and Smt.Raji T. Bhaskar, the learned counsel appearing for the 1^st respondent herein and Smt.Manjusha K, the learned counsel appearing for the additional 2^nd respondent in this appeal.

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The only question that arises for consideration is whether the amounts awarded by the Tribunal under the various heads require reconsideration. The learned counsel for the appellant points out that, the Tribunal while fixing the monthly income, committed an error by accepting it as Rs.2,000/-, which was very low. Considering the fact that, the accident occurred in the year 2006, the monthly income of Rs.2,000/- appears to be on the lower side. The learned counsel for the respondents in this regard would point out that, the monthly income claimed in the

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MACA NO. 1682 OF 2012

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claim petition was Rs.2,500/- only and therefore no amount higher than the same could be claimed by the appellant. On going through the claim petition, it is seen that, the monthly income claimed was Rs.2,500/-. However, when the claimant was examined as PW1, he asserted that he was getting an average monthly income of Rs.3,000/-. Since he asserted that after mounting the box that, he was getting a monthly income of Rs.3,000/-, the same can be accepted as a reasonable monthly income. This is particularly because, in Ramachandrappa V. Manager, Royal Sundaram Alliance Insurance Co. Ltd [(2011) 13 SCC 236] the Hon’ble Supreme Court was pleased to take the monthly income of an ordinary employee as Rs.4,500/- in respect of an accident occurred in the year 2004. Therefore, under no circumstances, the monthly income of Rs.3,000/- could be treated as unreasonable for the year 2006. Hence, the monthly income is fixed as Rs.3,000/-. When reassessing the compensation with the above revised monthly income, the compensation for disability would come to Rs.56,160/- (3000 X 12 X 13 X 12/100). The amount already awarded by the tribunal is Rs.37,440/- and thus the additional amount comes to Rs.18,720/-.

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The appellant would get some additional amount under the head of loss of earnings, consequent to the revision of monthly income. The tribunal awarded compensation under this head for a

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MACA NO. 1682 OF 2012

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period of six months and the said period appears to be reasonable. Accordingly, a further sum of Rs.6,000/- is awarded under the said head.

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The tribunal awarded only Rs.20,000/- under the head of pain and suffering. It is discernible from the records that, he suffered a fracture of both bones of left forearm. He had undergone inpatient treatment for a period of 16 days and even after discharge, he continued treatment. The Tribunal already granted compensation for loss of earnings for a period of six months. When all the aforesaid aspects are taken into consideration, a further sum of Rs.5,000/- can be granted towards pain and suffering. Similarly, some amount should have been granted towards loss of amenities, but no amount is seen awarded under the said head by the Tribunal. The fact that the appellant sustained serious injuries and it resulted in physical disability to the extent of 12%, cannot be ignored while considering this aspect. The injuries and the consequential disability would certainly affect the quality of the life of the appellant and therefore, reasonable compensation needs to be granted for loss of amenities. In the facts and circumstances, I deem it appropriate to grant an amount of Rs.20,000/- under the said head. Thus, the total additional compensation is determined as Rs.49,720/[18720+6000+5000+20000].

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MACA NO. 1682 OF 2012

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In the result, this appeal is allowed. Award passed by the Motor Accidents Claims Tribunal, Kollam in O.P.(MV).No.401 of 2007 on 23.02.2012 is hereby modified by granting an additional compensation of Rs.49,720/- [Rupees forty nine thousand seven hundred and twenty only] and the said amount shall be deposited by the 1^st respondent herein with interest at the rate as ordered by the Tribunal with proportionate within a period of three months from the date of receipt of a copy of this judgment. However, it is clarified that, upon such deposit, it shall be open for the 3^rd respondent herein to recover the said compensation from the 1^st respondent, since I did not interfere with the finding of the Tribunal regarding the violation of policy conditions from the side of the 2^nd respondent in the claim petition. It is further ordered that the claimant shall furnish the details of the PAN Card, AADHAR Card and Bank details to enable the Insurance Company to make the deposit as ordered above, within a period of one month from the date of receipt of a copy of this judgment. In case, he fails to furnish the said details, it shall be open for the Insurance Company to deposit the said amount before the Tribunal.

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Sd/- ZIYAD RAHMAN A.A. JUDGE

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scs/DG

Ismail Kunju , v. the Divisional Manager

Case brief

What is this about?

What did the court decide?

Ismail Kunju , v. the Divisional Manager

Case brief

What is this about?

What did the court decide?

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