Abhilash.K. v. State of Kerala and United India Insurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 16TH NOVEMBER 2011 / 25TH KARTHIKA 1933 OP (MAC).No. 3693 of 2011(O) ----------------------------AGAINST THE ORDER DATED 13/10/2011 IN IA 4035/2011 IN OPMV.375/2009 of II ADDL. M.A.C.T., KOZHIKODE .................... PETITIONER: ------------------ ABHILASH.K., AGED 27 YEARS, S/O. ASOKAN, KOLLADIKKATT HOUSE, P.O.KURUVATTOOR, (VIA) KAKKODI, KOZHIKODE DISTRICT. BY ADV. SRI.V.N.RAMESAN NAMBISAN RESPONDENTS: ------------------- ## 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN-682 031. ## 2. UNITED INDIA INSURANCE CO.LTD., CHEROOTY ROAD, KOZHIKODE DISTRICT, PIN-673 001. BY GOVT. PLEADER SRI.G.GOPAKUMAR SRI.P.V.JYOTHIPRASAD, SC THIS OP (MACT) HAVING COME UP FOR ADMISSION ON 16/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.(MAC) No. 3693/2011 APPENDIX PETITIONER(S) EXHIBITS EXT.P1 TRUE COPY OF AWARD DATED 26.4.2011 IN O.P(MV) 375/2009 PASSED BY THE 2ND ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE. EXT.P2 TRUE COPY OF I.A.NO.4035/2011 AND THE AFFIDAVIT IN SUPPORT THEREOF. EXT.P3 TRUE COPY OF THE CERTIFICATE NO.722/11 DATED 11.8.2011 ISSUED BY THE VILLAGE OFFICER, KURUVATTUR. EXT.P4 TRUE COPY OF LETTER DATED 16.8.2011 ISSUED BY THE STATE BANK OF INDIA, KOZHIKODE BRANCH. EXT.P5 TRUE OPY OF ORDER DATED 13.10.2011 OF THE 2ND ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE DISMISSING EXHIBIT P2 PETITION SUBMITTED BY THE PETITIONER. ## RESPONDENTS' EXHIBITS NIL /True Copy/ vps PA to Judge ## **P.N.RAVINDRAN** , **J.** ## **--------------------------O.P.(MAC) No. 3693 OF 2011 -------------------------Dated this the 16[th] day of November, 2011** ## **J U D G M E N T** The petitioner is the claimant in O.P.(MV) No.375 of 2009 on the file of the II Additional Motor Accidents Claims Tribunal, Kozhikode. By Ext.P1 award passed on 26.4.2011, the Motor Accidents Claims Tribunal awarded the sum of Rs.1,94,987/- as compensation and directed the second respondent herein, the insurer of the vehicle, to deposit the said amount together with interest at 7% per annum from 26.3.2009 till the date of deposit and costs of Rs.650/-. The Motor Accidents Claims Tribunal also directed that from the said amount, the sum of Rs.50,000/- shall be paid to the petitioner and the balance amount shall be deposited in two deposits of equal value, one for a period of three years and the other for five years. 2. Ext.P1 award has attained finality. Pursuant to Ext.P1 award, the second respondent insurer deposited the amount payable thereunder by three cheques. The sum of Rs.88,075/was released to the petitioner and the remaining amount covered by two cheques namely, Rs.1,76,151/- was deposited in OP(MAC) No.3693/2011 2 fixed deposit. One half of the said amount was deposited for a period of three years and the remaining half for a period of five years. Shortly after the petitioner received payment of the sum of Rs.88,075/-, he filed I.A. No.4035 of 2011 before the Motor Accidents Claims Tribunal praying for an order for releasing the amount lying in deposit namely the sum of Rs.1,76,151/-. The petitioner contended that his parents are constructing a residential building approximately 950 square feet in extent, that the structure of the building is complete, that other works remain to be done and for that purpose the petitioner and his family members have to expend a further sum of Rs.4,00,000/-. The petitioner contended that in such circumstances the balance amount lying in deposit may be released to him so that the construction of the building can be completed. Along with the application, he produced the original of Ext.P3 certificate issued by the Village Officer, Kuruvattoor Village to the effect that construction of a building is in progress, that a further sum of Rs.4,00,000/- is required to complete the construction and Ext.P4 letter dated 16.8.2011 issued by the General Manager of State OP(MAC) No.3693/2011 3 Bank of India, Kozhikode branch to the effect that the petitioner's parents have availed loan of Rs.3,00,000/- from the said bank and that as on date the balance amount outstanding in the loan account is Rs.1,99,468/-. Relying on the said documents the petitioner contended that if the balance amount is disbursed to him, he and his family members will be able to complete the construction of the house. By the order impugned, a copy of which is marked as Ext.P5, the Motor Accidents Claims Tribunal dismissed the application holding that no grounds have been made out for the premature closure of the fixed deposits. This original petition is filed challenging Ext.P5 and seeking a direction to the Motor Accidents Claims Tribunal to release the balance amount lying in deposit. 3. I heard Sri.V.N.Ramesan Nambisan, learned counsel for the petitioner and Sri.P.V.Jyothiprasad, learned standing counsel appearing for the second respondent. Since the State of Kerala, joined as the first respondent, is not a proper or necessary party, it is not necessary to hear the State of Kerala. It is evident from the pleadings and the materials on record, especially the OP(MAC) No.3693/2011 4 averments in the affidavit filed in support of I.A. No.4035 of 2011 that the petitioner has in categorical terms averred that the balance amount lying in deposit is required for the purpose of construction of a residential building. The Village Officer, Kuruvattur has in Ext.P3 certificate certified that the construction of a building having an area of 950 square feet is in progress and that a further sum of Rs.4,00,000/- will be required to complete the construction. Ext.P4 certificate issued by the State Bank of India discloses that a housing loan of Rs.3,00,000/- was sanctioned to the petitioner's parents and that from that loan account a further sum of Rs.1,99,468/- is available to be utilised for construction of the building. The case set out by the petitioner that if the balance amount lying in deposit is released to him he and his family members will be able to complete the construction of the building is supported by Exts.P4 and P5. A Division Bench of this Court has in **Saramma v. M.A.C.T.** (1999 (3) KLT 624 DB) held as follows: _“We have perused the order passed. In our view the Tribunal has not appreciated the bona fides of the claim put forward by the applicant. It is well settled principle that shelter is the basic requirement of a human being and that the appellant is entitled to withdraw the amount to meet the financial expenses required for_ OP(MAC) No.3693/2011 5 _putting up a shelter subject to her placing proof of ownership and other documents in support of her claim before the Tribunal. Of course the appellant has not placed before the learned Tribunal the title deed and the tax receipt. Courts have held that right to life enshrined in Art.21 means something more than survival. Therefore it includes all that aspects of life which will give meaningful, complete and worth living.”_ The Division Bench thereafter proceeded to hold that right to life enshrined in Art.21 of the Constitution is the right to live with human dignity and all that goes along with it namely the bare necessaries of life such as adequate clothing and shelter over the head. In the light of the binding decision of this Court, I am of the opinion that the petitioner is entitled to have the balance amount lying in deposit released to him. I accordingly allow the original petition, set aside Ext.P5 and direct the Motor Accidents Claims Tribunal, Kozhikode to release the amount lying in deposit in O.P(MV) No.375 of 2009 to the petitioner, on the petitioner submitting an application in that regard. ## **P.N.RAVINDRAN, (JUDGE)** vps OP(MAC) No.3693/2011 6