Ajikumar v. Geetha Devi and Bajaj Allianz Insurance Co. Ltd.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.`** ``` MONDAY, THE 11[TH] DAY OF DECEMBER 2023 / 20TH AGRAHAYANA, 1945 ``` ## **`MACA NO. 1095 OF 2012`** ## **`AGAINST THE AWARD DATED 29.08.2011 IN OP(MV) 1675/2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOLLAM`** ## **`APPELLANT/PETITIONER:`** ``` AJIKUMAR S/O. BALAN PILLAI, GEETHA BHAVANAM, MUTHUPILAKKAD.P.O., SASTHAMCOTTA, KOLLAM. ``` ``` BY ADV SRI.PRATHEESH.P ``` ## **`RESPONDENTS/1ST AND 3RD RESPONDENTS:`** ``` 1GEETHA DEVI KALOONA HOUSE NO. 169, KOICKAL BHAGOM, PERUVELIKKARA.P.O. KALLADA-691502. 2THE DIVISIONAL MANAGER BAJAJ ALLIANCE INSURANCE CO. LTD., M.G.ROAD, ERNAKULAM-18. BY ADVS. FATHIMA MOHAN SRI.GEORGE CHERIAN (THIRUVALLA) – SR. SMT.LATHA SUSAN CHERIAN R2- ADV AKHIL K MADHAV ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 11.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 1095 OF 2012 ``` ``` 2 ``` ## **`JUDGMENT`** The appellant was the petitioner in O.P.(M.V.) No.1675/2007 on the files of the Motor Accident Claims Tribunal, Kollam. The said claim petition was submitted by him seeking compensation for the injuries sustained in a motor accident that occurred 08.12.2006. 2. According to him, the accident occurred when he was travelling in a Maruti car bearing Registration No.KL 2 V 699, the 2[nd] respondent in the claim petition, the driver of the car, lost control and the vehicle fell into a lake near the road. Due to the impact, he sustained injuries. According to him, he was a businessman with a monthly income of Rs.2,500/-. The claim petition was submitted in such circumstances. The 1[st] respondent in the claim petition was the owner of the vehicle and it was insured with the 3[rd] respondent in the claim petition . 3. The 3[rd] respondent therein, filed a written statement admitting the coverage of policy but, they disputed the liability on various grounds. The quantum of compensation was also disputed by them. The Insurance Company further contended that ``` MACA NO. 1095 OF 2012 ``` ``` 3 ``` the driver of the vehicle did not have a valid driving license at the time of the accident. 4. The evidence in this case consists of oral testimony of PW1 and Exts.A1 to A14 from the side of the appellants. From the side of the respondents, Ext.B1 was marked. After the trial, the Tribunal came to the conclusion that, the accident occurred due to the negligence on the part of the driver of the car and being the insurer, the 3[rd] respondent insurer was held liable to pay the compensation. The quantum of compensation was fixed as Rs.1,16,000/- and 3[rd] respondent in the claim petition/ the 2[nd] respondent herein was directed to deposit the said amount with interest @ 7.5% per annum from the date of petition till realization with cost of Rs.2,000/-. However, as it was found that the driver of the vehicle was not having valid driving license, 2[nd] respondent Insurance Company was permitted to recover the compensation from the owner of the said vehicle after satisfaction of the award. This appeal is submitted by the appellant in such circumstances, seeking enhancement of compensation. 5. Heard Sri.Pratheesh P., learned counsel appearing for ``` MACA NO. 1095 OF 2012 ``` ``` 4 ``` the appellant and Smt. Latha Susan Cherian, learned counsel appearing for the 2[nd] respondent. 6. The main contest is regarding the quantum of compensation. The learned counsel for the appellant contends that the amount awarded by the Tribunal for disability was on the lower side. It was pointed out that, the monthly income taken by the Tribunal was Rs.2,000/- which is on the lower side and according to him, as per the method of computation, in the light of the principles laid down by the honourable Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd** [(2011) 13 SCC 236], and **Syed Sadiq v. Divisional Manager, United India Insurance Company** [(2014) 2 SCC 735] under no circumstances the monthly income can be lesser than Rs.5,500/-. However, the learned counsel for the Insurance Company opposes the said contention by pointing out that, the monthly income claimed was only Rs.2,500/- and therefore, any higher amount beyond that is not necessary. But, after considering the materials placed on record, I am not inclined to accept the contention raised by learned counsel for the ``` MACA NO. 1095 OF 2012 ``` ``` 5 ``` Insurance Company. This is particularly because, merely on the reason that a lesser monthly income was happened to be shown in the claim petition, that would not preclude the Tribunal or this Court from taking a higher monthly income if the facts and circumstances justifies taking such higher income. While adjudicating a claim under Section 166 of Motor Vehicles Act, this Court and the Tribunal has an obligation to ensure just compensation to the victim and while doing the said exercise, too much emphasis need not be given to the pleadings of the parties. Moreover, in **Minu Rout v. Satya Pradyumna Mohapatra** [(2013) 10 SCC 695] the Honorable Supreme Court has taken the monthly income at higher rates than claimed in the claim petition. In this case, as rightly pointed out by the learned counsel for the appellant, in the light of the standards set out in **Ramachandrappa’ case** and **Syed Sadiq’s case (supra)** the monthly income of an ordinary worker without any specialized skill could be taken as Rs.5,500/- in respect of an accident occurred in the year 2006. Therefore, the same can be treated as a benchmark and therefore, the same being found to be a ``` MACA NO. 1095 OF 2012 ``` ``` 6 ``` reasonable amount, it is fixed as monthly income in this case as well. The Tribunal has already adopted 10% as the percentage of physical disability of the appellant. Thus, while reassessing the compensation with the above revised criteria, the amount under the head of permanent disability would come to Rs.1,18,800/(5,500 x 12 x 18 x 10/100). The amount already awarded by the Tribunal under this head was Rs.40,800/- and thus the additional amount would come to Rs.78,000/-. 7. Consequent to the revision of the monthly income, the appellant would be entitled to an additional compensation under the head of loss of earnings as well. The Tribunal has awarded compensation for five months in this case. Therefore, the additional compensation would come to Rs.17,500/- [(5,500 x 5)- 10,000]. Similarly, no amount is seen awarded towards loss of amenities as well. It is discernible from the records that the appellant had undergone inpatient treatment for 31 days, and the injuries sustained were serious in nature. Moreover, the Tribunal fixed the percentage of disability as 10%. When taking note of the aforesaid aspects, I am of the view that, an amount of Rs.20,000/- ``` MACA NO. 1095 OF 2012 ``` ``` 7 ``` can be treated as a reasonable compensation for loss of amenities. Thus, the total additional compensation receivable by appellant is determined as Rs.1,15,500/- (78,000 +17,500 + 20,000). In the light of the aforesaid observations and findings, this appeal is allowed. The award dated 29.08.2011 passed by the Motor Accident Claims Tribunal, Kollam in O.P.(M.V.) No.1675/2007 is hereby modified by granting an additional compensation of Rs.1,15,500/- (Rupees one lakh fifteen thousand and five hundred only) and the 2[nd] respondent herein is directed to deposit the said amount along with interest at the rate as ordered by the Tribunal and proportionate costs within a period of three months from the date of receipt of a copy of this judgment. It is clarified that, the finding of the Tribunal, granting recovery right to the 2[nd] respondent from the registered owner of the vehicle is already set aside by this Court as per the judgment passed today in MACA 2034/2012. It is further clarified that as the delay of 182 days in filing the appeal was condoned on the ground that the appellant cannot claim interest for the period of delay ``` MACA NO. 1095 OF 2012 ``` ``` 8 ``` while computing the interest, the 2[nd] respondent shall be entitled to exclude the said period. **Sd/-** **`ZIYAD RAHMAN A.A. JUDGE`** scs ``` 9 ``` ## **`MACA NO. 1095 OF 2012`** ## **`APPENDIX OF MACA 1095/2012`** ## `PETITIONER ANNEXURES` ``` Annexure R1(a)THE ORIGINAL OF THE EXTRACT OF DRIVING LICENSE OF SRI.UNNIKRISHNAN K.G DATED 10.02.2023 ISSUED FROM THE OFFICE OF THE REGIONAL TRANSPORT OFFICE, KUNNATHUR ```