JAKKAN @ SHAKKEN v. United India Insurance Co. Ltd and others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` WEDNESDAY, THE 21[ST] DAY OF FEBRUARY 2024 / 2ND PHALGUNA, 1945 ``` ## **`MACA NO. 3206 OF 2014`** ``` AGAINST THE AWARD DATED 10.03.2014 IN OP(MV) 612/2011 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA ``` ## **`APPELLANT/PETITIONER:`** ``` JAKKAN @ SHAKKEN S/O.PERUMAL T, SETTIAPETTI COLONY, USALAPPETTY TALUK, MADURAI DISTRICT, TAMIL NADU. ``` ``` BY ADV SRI.THOMAS ABRAHAM (NILACKAPPILLIL) ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1THE MANAGER, UNITED INDIA INSURANCE CO.LTD DEVASAHAYAM BUUILDINGS, PONKUNNAM, KOTTAYAM DISTRICT-686 506. ``` ``` *ADDL.2SABU RAJAN S/O NARAYANANAN, KOCHUKAPPIL HOUSE, ANNAKUZHY BHAGOM, K.S. PURAM KARA, KADUTHURTY VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT – 686604 ``` ``` *ADDL.3RAJU C.N. S/O NARAYANAN, CHOOLAYIKKOTTIL HOUSE, AMMAYIMUKK BHAGOM, ARUNNOOTTIMANGALAM KARA, MULAKULAM VILLAGE, VAIKOM TALUK, ARUNNOOTTIMANGALAM P.O, KOTTAYAM DISTRICT - 686604 ``` ``` *[ADDITIONAL RESPONDENT NOS. 2 AND 3 ARE IMPLEADED AS PER ORDER DATED 30/03/2023 IN IA-1/2021 IN MACA 3206/2014] ``` ``` BY ADV SRI.S.K.AJAY KUMAR ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 21.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 3206 OF 2014 ``` ``` 2 ``` ## **`JUDGMENT`** The appellant was the petitioner in O.P.(M.V.) No.612/2011 on the files of the Motor Accident Claims Tribunal, Pala. The said claim petition was submitted by him seeking compensation for the injuries sustained in a motor accident that occurred on 28.10.2010. 2. According to the appellant, the accident occurred when he was knocked down by a car bearing Registration No.KL36 5220, driven by the 1[st] respondent in the claim petition in a rash and negligent manner. The 2[nd] respondent in the claim petition was the owner of the car and it was insured with the 3[rd] respondent in the claim petition. The appellant was a cobbler with a monthly income of Rs.10,000/-. He was aged 40 years at the time of the accident. According to him, he sustained permanent disability due to the injuries sustained to him. The claim petition was submitted in such circumstances. 3. The respondent herein/3[rd] respondent in the claim petition resisted the application by filing a written statement, wherein they denied negligence on the part of the 1[st] respondent in ``` MACA NO. 3206 OF 2014 ``` ``` 3 ``` the claim petition. The quantum of compensation was also seriously disputed by them. However, they admitted the coverage of the policy but, raised a contention that the 1st respondent in the claim petition was not having a valid driving license. 4. 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 College Hospital, Kottayam was marked as Ext.X1. After examining the materials produced, the Tribunal came to the conclusion that the accident occurred due to the negligence on the part of the 1[st] respondent in the claim petition. The Tribunal also found that, the 1st respondent in the claim petition was not having a valid driving license. Therefore, even though the initial liability to pay the compensation was imposed upon the 3[rd] respondent in the claim petition, they were permitted to recover the compensation from the respondents 1 and 2 in the claim petition. The quantum of compensation was determined as Rs.1,53,988/- and the said amount was directed to be deposited by the 3[rd] respondent in the claim ``` MACA NO. 3206 OF 2014 ``` ``` 4 ``` petition with interest at the rate of 7.5% per annum from the date of petition till realisation and proportionate cost subject to the right of recovery granted. This appeal is submitted by the appellant in such circumstances seeking enhancement of compensation. 5. Heard Sri.Thomas Abraham (Nilackappillil), learned counsel appearing for the appellant and Sri.S.K. Ajayakumar, learned counsel appearing for the 1st respondent/3rd respondent in the claim petition. 6. The only question that arises for consideration is whether the amount awarded by the Tribunal is reasonable or not. The learned counsel for the petitioner points out that, while assessing the compensation for permanent disability, the Tribunal fixed a very low monthly income and also failed to accept the whole body disability as certified in Ext.X1. According to him, this resulted in a lesser amount being awarded under the head of disability. After going through the materials placed on record, I find force in the said contention. It is to be noted that, the accident in this case occurred in year 2010. Rs.5,000/- fixed by the Tribunal as ``` MACA NO. 3206 OF 2014 ``` ``` 5 ``` the monthly income appears to be very low for the year 2010. It is to be noted that, the only evidence in this regard is the deposition of PW1 in which he asserted that the monthly income was Rs.10,000/-. However, as there is no other evidence, the monthly income as claimed by the appellant as such, cannot be accepted. However, when the monthly income is calculated on the basis 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], for the year 2010, it can be reasonably fixed as Rs.7,500/- (by fixing the basic monthly income as Rs.4,500/- for the year 2004 and by making an addition of Rs.500/- per year for the subsequent years). The said amount appears to be reasonable and it can be accepted in this case. 7. The next aspect to be considered is the percentage of disability. Ext.X1 is the disability certificate issued by the Medical ``` MACA NO. 3206 OF 2014 ``` ``` 6 ``` Board, wherein the percentage of disability certified was 11.2%. However, the Tribunal scaled down the percentage of disability and fixed it as Rs.10% for the purpose of assessment compensation. When the Medical Board consisting of expert Doctors makes an evaluation of the physical disability suffered by the victim and issues a certificate, the Tribunal cannot sit in appeal over the same. Unless there are serious discrepancies in the said certificate, the Tribunal should not have scaled down the percentage of disability mentioned in the said certificate. In this case on going through the contents of Ext.X1 and the nature of injuries suffered by the appellant as is discernible from the other medical records, I do not find any discrepancy therein and hence I do not find it justifiable to reduce the percentage of disability certified in Ext.X1. Therefore, the percentage of disability is accepted as 11.2% as certified in Ext.X1. Similarly, even though the victim was aged 40 years at the time of the accident the Tribunal applied the multiplier as 13 which was also not proper. The correct multiplier was 15. In such circumstances, while reassessing the compensation with the above ``` MACA NO. 3206 OF 2014 ``` ``` 7 ``` revised criteria, the amount of compensation would come to Rs.1,51,200/- (7,500 x 12 x 15 x 11.2/100). The amount already awarded by the Tribunal in this regard would come to Rs.78,000/and the additional compensation would come to Rs.73,200/-. 8. Consequent to the revision of monthly income, the appellant would be entitled for some additional amount under the head of loss of earnings as well. The Tribunal awarded compensation under this head for a period of four months and the said period appears to be reasonable. Therefore, an additional amount of Rs.10,000/- is awarded under this head. 9. The Tribunal awarded Rs.30,000/- towards pain and sufferings. It is discernible from the records that the appellant had sustained a lacerated wound left leg 2 x 1 cm at middle third anterior aspect. X-ray showed Type I open fracture both bones of left leg. He had undergone inpatient treatment for 22 days and even after the discharge he continued the treatment. It is also seen from the records that, there was history of non-union of both bones of the left leg as well. In such circumstances, I am of the view that, some ``` MACA NO. 3206 OF 2014 ``` ``` 8 ``` additional amount is to be granted towards pain and suffering and in the facts and circumstances of the case, I deem it appropriate to fix it as Rs.10,000/-. 10. The Tribunal did not award any compensation towards loss of amenities and enjoyment in life. It is to be noted that this is a case in which the appellant sustained very serious injuries and it resulted in physical disability as well. The disability suffered by him would certainly affect the quality of the life which he was leading. Therefore, a reasonable compensation is to be granted under the said head. Accordingly, I deem it appropriate to fix Rs.25,000/- as the compensation for loss of amenities and enjoyment in life. The Tribunal did not award any amount towards damage to clothing and therefore, a further sum of Rs.500/- is awarded under the said head. Thus, the total additional compensation is determined as Rs.1,18,700/- (73,200 + 10,000 + 10,000 + 25,000 + 500). In the result, this appeal is allowed. The award dated 10.03.2014 in O.P.(M.V.) No.612/20011 passed by the Motor ``` MACA NO. 3206 OF 2014 ``` ``` 9 ``` Accident Claims Tribunal, Pala is hereby modified by granting an additional compensation of Rs.1,18,700/- (Rupees one lakh eighteen thousand and seven hundred only) and the said amount shall be deposited by the 1[st] respondent herein with interest at the rate as ordered by the Tribunal and proportionate cost, within period of three months from the date of receipt of copy of this judgment. However, it is clarified that, upon such deposit it shall be open for the 1st respondent herein to recover the said additional compensation from the 2[nd] and 3[rd] respondents herein. It is further clarified 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 period of two months 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 same amount before the Tribunal. ``` Sd/- ZIYAD RAHMAN A.A. JUDGE ``` scs