Eby.P.A. v. Mohammed Jamshid P.Y. & ors.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **FRIDAY, THE 26[TH] DAY OF AUGUST 2022 / 4TH BHADRA, 1944** **MACA NO. 779 OF 2011** **AGAINST THE AWARD DATED 08.11.2010 IN O.P.(MV)NO.512/2005** **OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PERUMBAVOOR** ## **APPELLANT/PETITIONER :** **EBY.P.A., AGED 32 YEARS, S/O. LATE SRI. ALIA, PYNADATH HOUSE, 6 CENT, AKAPARAMBU, MEKKAD.P.O.** **BY ADV ANIL S.RAJ** ## **RESPONDENTS/RESPONDENTS :** - **1 MOHAMMED JAMSHID.P.Y., S/O. YOUSEF, PUTHENPURAYIL HOUSE, EDATHALA.P.O, ALUVA - 682 001.** - **2 NATIONAL INSURANCE COMPANY LIMITED, MULLAPPILLY BUILDINGS, A.M ROAD, PERUMBAVOOR - 683 542.** - **3 THE ORIENTAL INSURANCE COMPANY LIMITED, KALLOOKKARAN SHOPPING COMPLEX, 1ST FLOOR, ANGAMALY, PIN-683 572.** - **4 SAHEEV, S/O. VELU, POONOLY HOUSE, MATTOOR.P.O., KALADY - 683 574.** **BY ADVS. A.K.SYEDMOHAMED GEORGE CHERIAN LAL GEORGE K.S.SANTHI** ## **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR** **ADMISSION ON 26.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.779 of 2011 ..2.. ## **MACA No.779 of 2011** ## **-----------------------------------------------** ## **J U D G M E N T** Award in O.P.(MV)No.512 of 2005 on the file of the Motor Accidents Claims Tribunal, Perumbavoor is put under challenge by the petitioner before the Tribunal on the ground of inadequacy arraying respondents as respondents before the Tribunal. 2. Heard the learned counsel for the appellant, the learned counsel appearing for the third respondent/the Oriental Insurance Co.Ltd. and Adv.Sri.Lal George, the learned counsel appearing for the second respondent/the National Insurance Company. 3. Facts of the case are as follows: On 21.7.2004 at about 10.00 a.m., while the appellant was riding on motorcycle bearing Registration MACA No.779 of 2011 **==> picture [46 x 8] intentionally omitted <==** No.KL-7/AF-9292 through Mattor-Kaippattoor road from west to east and when he reached at the place of occurrence, a car bearing Registration No.KL-5/7157 driven by the additional fourth respondent came from a pocket road from south to north in a rash and negligent manner turned to westwards and the car hit down the appellant and his motorcycle and he sustained severe injuries. 4. The second respondent filed written statement and admitted policy to the car bearing Registration No.KL-5/7157, while disputing the accident as well as the quantum of compensation. Violation of policy conditions alleged on the ground that the additional fourth respondent, the driver of the car bearing Registration No.KL5/7157 did not possess a valid driving licence at the time of accident. 5. The third respondent/the insurer of the motorcycle bearing Registration No.KL-7/AF-9292 also filed written statement disputing the claim, while admitting policy MACA No.779 of 2011 **==> picture [46 x 8] intentionally omitted <==** to the motorcycle. 6. The Tribunal tried the matter. PW1 and PW2 examined and Exts.A1 to A8 marked on the side of the appellant and Ext.B1 marked on the side of the respondents. After appraising the evidence, Rs.17,686/- was granted by the Tribunal along with 8% interest as against the claim of Rs.65,000/-. 7. It is submitted by the learned counsel for the appellant that the Tribunal fixed Rs.2,500/- as the monthly income of the appellant, though it has been specifically contented before the Tribunal that the appellant was earning Rs.6,000/- per month as driver aged 26 years at the time of accident. The income as claimed is not proved in any manner. Since the accident is of the year 2004, Rs.4,500/can be fixed as the monthly income in this case following the ratio in [(2011) 13 SCC 236], **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** In this matter, no disability certificate MACA No.779 of 2011 ..5.. ## produced to substantiate the disability income. 8. As per Ext.A6, copy of wound certificate as well as Ext.A7, case summary and discharge card issued from Little Flower Hospital, Angamaly, the appellant sustained nasal bone fracture along with multiple abrasions on nose, face, left foot and upper limb. Thus, he underwent inpatient treatment for a period of four days from 21.07.2004 to 24.07.2004. 9. It is submitted by the learned counsel for the appellant that the compensation granted under the head loss of earnings and other heads is on lower side and the same requires enhancement under the principle of 'just compensation'. 10. The learned counsel for the third respondent would submit that the Tribunal found negligence against the additional fourth respondent and the liability was fastened on the third respondent and the second respondent and the third respondent is only a formal party in this appeal. MACA No.779 of 2011 ..6.. 11. The learned counsel for the second respondent would submit that reasonable compensation entitled was granted by the Tribunal and therefore, much increase in compensation does not arise in this matter, though he conceded that monthly income following the ratio in **Ramachandrappa** 's case(Supra) can be given. Fixing monthly income at Rs.4,500/- as already observed, I am inclined to re-calculate the loss of earnings in this case for a period of two months as under: Rs.4,500x2=9,000/- Out of which, Rs.2,500/- was granted by the Tribunal. 9,000-2,500= **Rs.6,500/-** more is granted under the head loss of earnings. 12. Apart from that, the Tribunal granted Rs.8,000/- under the head pain and sufferings. The same is on lower side, in a case involving nasal bone fracture, Therefore, **Rs.8,000/-** more is granted under the head pain and sufferings. The Tribunal granted only Rs.4,000/- under MACA No.779 of 2011 **==> picture [46 x 8] intentionally omitted <==** the head loss of amenities. The same also requires reasonable increase and I am inclined to grant **Rs.8,000/-** more under the head loss of amenities. Towards extra nourishment, the Tribunal granted only Rs.500/-. I am inclined to grant **Rs.2,500/-** more under this head. Under other heads, the Tribunal granted reasonable compensation. 13. In the result, this appeal is allowed. It is ordered that the appellant is entitled to get enhanced compensation to the tune of **Rs.25,000/-** (Rupees Twenty Five Thousand only) at the rate of 8% interest granted by the Tribunal from the date of petition till the date of deposit or realisation excluding the period of 84 days wherein, grant of interest was specifically disallowed by the order in C.M.Application No.1240 of 2011 dated 07.11.2017. The insurance company is directed to deposit the same in the name of the appellant within two months from today. On deposit, the appellant can release the same. 14. In this matter, recovery right was given in MACA No.779 of 2011 ..8.. favour of the second respondent on the finding that the additional fourth respondent, the driver of the car bearing Registration No.KL-5/7157 did not possess a valid driving licence at the time of accident. The said finding was entered into by the Tribunal, on the basis of adverse inference drawn regarding absence of driving licence to the additional fourth respondent, since driving licence not produced, even after specific direction issued by the Tribunal as per order in I.A.No.1338 of 2010. Additional fourth respondent did not appear before this Court also, though he was served by substituted service. Thus, the contention raised by the second respondent that the additional fourth respondent did not possess a valid driving licence stands unchallenged. Therefore, recovery right is granted in favour of the insurer insofar as the entire amount inclusive of the amount granted as enhanced compensation along with interest. The second respondent/the insurer is held entitled to recover the entire MACA No.779 of 2011 ..9.. compensation along with the interest thereof from the first respondent, the owner of the vehicle, on depositing the same in the name of the appellant, as directed. Sd/- **A.BADHARUDEEN, JUDGE** rkj