Jimmy Joy v. Shaji K. & National Insurance Company Limited

M.A.C.A.No.2460/2015 & C.O.No.2/20 1 # _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 10[TH] DAY OF SEPTEMBER 2021 / 19TH BHADRA, 1943_ ## _MACA NO. 2460 OF 2015_ _AGAINST THE ORDER/JUDGMENT IN OPMV 8/2010 OF ADDITIONAL .DISTRICT COURT & MOTOR ACCIDENT CLAIMS TRIBUNAL, THODUPUZHA, IDUKKI_ ## _APPELLANT/S:_ _JIMMY JOY, AGED 37 YEARS, S/O.JOY, KOONTHANATHU HOUSE, KARINKUNNAM KARA, KARINKUNNAM VILLAGE, KARINKUNNAM PO, THODUPUZHA TALUK, PIN 685 586._ _BY ADVS. SRI.THOMAS M.JACOB SRI.AKHIL K.MADHAV SRI.T.R.JERRY SEBASTIAN_ ## _RESPONDENT/S:_ _1 SHAJI K., S/O.KOCHUPILLA, KANYAYIL HOUSE, PURAPUZHA KARA, PURAPUZHA VILLAGE, THODUPUZHA, PIN 685 584._ - _2 THE DIVISIONAL MANAGER NATIONAL INSURANCE COMPANY LIMITED, TRIPUNITHURA, PIN 682 301._ _BY ADVS. SRI.JACOB E SIMON SRI.S.K.AJAY KUMAR_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ M.A.C.A.No.2460/2015 & C.O.No.2/20 2 ## _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 10[TH] DAY OF SEPTEMBER 2021 / 19TH BHADRA, 1943_ _CO NO. 2 OF 2020_ _AGAINST THE ORDER/JUDGMENT IN MACA 2460/2015 OF HIGH COURT_ _OF KERALA_ ## _PETITIONER/S:_ _SHAJI.K, AGED 49 YEARS, S/O.KOCHUPILLA, KANYAYI HOUSE, KARINKUNNAM P.O. IDUKKI DISTRICT 685 586._ _BY ADV JACOB E SIMON_ ## _RESPONDENT/S:_ _1 JIMMY JOY S/O. JOY, KOONTHANATHU HOUSE, KARINKINNAM KARA, KARINKUNNAM VILLAGE, KARINKUNNAM P.O. THODUPUZHA TALUK, 685 586._ _2 THE DIVISIONAL MANAGER, NATIONAL INSURANCE COMPANY LIMITED THRIPUNITHURA 682 301._ _BY ADVS._ _THOMAS M.JACOB S.K.AJAY KUMAR_ _THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR ADMISSION ON 10.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ M.A.C.A.No.2460/2015 & C.O.No.2/20 3 ## **JUDGMENT** This appeal is submitted by the petitioner in O.P.(MV).No.8 of 2010 on the file of Motor Accidents Claims Tribunal, Thodupuzha. The said claim petition was filed by him seeking compensation for the injuries sustained to him in a motor accident occurred on 18.01.2007. According to him, the accident occurred when his car was hit by a mini-lorry driven by the 1[st] respondent and insured with the 2[nd] respondent. The appellant contended that he is a postgraduate in Business Administration and was working in a company till 2006. As he belonged to an agricultural family having 20 acres of land, he started a dairy farm by leaving his employment. He contends that the management of that firm was being done by the petitioner himself. According to him, he was also conducting a vermi compost manufacturing unit. Monthly income claimed by him was Rs.15,000/- per month. Consequent to the injuries, he lost vision of one eye and also sustained fracture of right elbow, which resulted in permanent disablement. 2. The total compensation claimed was Rs.15,00,000/-. M.A.C.A.No.2460/2015 & C.O.No.2/20 4 3. The 1[st] respondent was set ex parte. The 2[nd] respondent insurance company filed a written statement admitting the existence of policy, however, raised a contention that the 1[st] respondent was not having valid driving license to drive mini-lorry. Quantum claimed by the appellant was also seriously disputed by them. 4. The evidence in this case consists of Exts.A1 to A17 from the side of the appellant and the 2[nd] respondent produced the copy of the policy as Exhibit B1. 5. After the trial, the Tribunal found that the accident occurred due to the negligence of the 1[st] respondent and it was also found that the 1[st] respondent was not having valid driving license at the time of accident and thereby there occurred violation of policy conditions. The quantum of compensation was fixed as Rs.13,75,060/- and the 2[nd] respondent was directed to deposit the same along with interest at the rate of 7% per annum from the date of petition. It was also directed that, upon satisfaction of the award, the 2[nd] respondent shall be entitled to realise the said amount from the 1[st] respondent herein. Being dissatisfied with the quantum of compensation, this appeal is filed by the appellant/petitioner. 6. Cross Objection No.2 of 2020 is filed by the 1[st] respondent/driver cum owner of the vehicle challenging the finding M.A.C.A.No.2460/2015 & C.O.No.2/20 5 entered into by the Tribunal that he was not having valid driving license to drive the vehicle at the time of accident and right of recovery granted to the appellant. The driving license particulars issued by the Motor Vehicles Department, Government of Kerala issued to the 1[st] respondent was also produced in the appeal along with I.A.No.1 of 2019. By placing reliance upon the said document, the 1[st] respondent would contend that, as on the date of accident, he was duly licensed to drive the vehicle. In such circumstances, he seeks to set aside the award to the extent it permitted the 2[nd] respondent to recover the amount of compensation from the 1[st] respondent. 7. Heard the learned counsel for the appellant and the learned counsels for the respondents 1 and 2. 8. The main contention raised by the learned counsel for the appellant is that the Tribunal committed an error in taking the percentage of disability of the appellant. The certificates in this regard are Ext.A9 series (2 Nos.), issued by the Medical Board. By placing reliance upon the said disability certificates, the learned counsel contends that he sustained 30% disability on account of loss of vision of one eye and in addition to that he has also suffered 14% Locomotor disability consequent to injuries sustained to his hand M.A.C.A.No.2460/2015 & C.O.No.2/20 6 and the restricted movement owing to the said injuries. However, the Tribunal has taken only 35% functional disability as a compromise, based on the concession made by the learned counsel for the 2[nd] respondent to that extent. On going through the observations made by the Tribunal, it can be seen that the Tribunal has accepted both the disability certificates. Despite the above, compensation has been calculated by taking the percentage of disability as 35% as agreed by the counsel for the 2[nd] respondent. On examining the entire facts and circumstances of the case, I am of the view that, after accepting the Medical Certificates, the Tribunal should not have reduced the percentage of disability based on the concession made by the learned counsel for the 2[nd] respondent. This is particularly so, as the observations in the award, do not indicate as to the consent on the part of the appellant in limiting the percentage of disability as above. The learned counsel for the petitioner would place reliance upon the judgments of **Sam K. Mani v. T.N.Sreedhara Kaimal and Others [2014 KHC 6], Raj Kumar v. Ajay Kumar and Another [2011 (1) KLT 620] and Karunakara @Kannan v. Abdul Rasheed and others [2015(5) KHC 355]** , to contend that when the percentage of disability is certified by competent doctors, it has to be relied upon, even in the M.A.C.A.No.2460/2015 & C.O.No.2/20 7 absence of examination of the doctors who issued the said certificate. 9. In this case, the Tribunal has already accepted the certificates produced by the appellant, and no discrepancies in the percentage of disability certified therein also was found. The Tribunal has also got the opportunity to see the victim and was convinced of the nature of disability. In such circumstances, I find no reason to reduce the percentage of disability as certified by competent doctor. In such circumstances, it is reasonable to take the total percentage of disability as certified in the respective certificates, which comes to 44%. I am inclined to accept the same for the purpose of computation of compensation. 10. Next aspect is relating to the monthly income of the petitioner. The learned counsel for the appellant points out that even though Rs.15,000/- was claimed as monthly income, the Tribunal has taken only Rs.10,000/-. He relies on Ext.A14 certificate showing his educational qualification (MBA). He relies on Exts.A12, A15, A15 and A16, to prove the activities of diary farming and other allied activities. According to him, consequent to the serious nature of physical disabilities, he is unable to manage his business concern in the manner as he used to manage the same, M.A.C.A.No.2460/2015 & C.O.No.2/20 8 prior to the accident. In such circumstances, he contends that the monthly income of Rs.10,000/- is very low. 11. The evidence available on record clearly indicate the educational qualification of the petitioner and also the business which is being carried on by him. It is true that, the appellant does not have a case that, he was forced to close down his establishments after the accident and thereby his source of income is foreclosed. Nevertheless, the impact of the physical disabilities would certainly affect his capacity to manage the establishment effectively which may result in lesser profits. Similarly, he would incur additional expenditure for management of the same as additional man power has to made available. In my view, even if the establishments were continued to be operated, he is required to be compensated for loss of earning capacity, due to the above aspects. When all these aspects are taken into consideration, Rs.10,000/- as fixed by the Tribunal, requires reconsideration. In my view, Rs.12,000/- would be a reasonable figure for ensuring just compensation to the appellant in this case. 12. The learned counsel for the appellant would further contend that, he is also entitled for compensation for loss of marriage prospects. However, an amount of Rs.3,54,000/- is seen M.A.C.A.No.2460/2015 & C.O.No.2/20 9 awarded under the head of loss of amenities, which in my view is slightly on higher side. Therefore, the said amount would take care of the compensation for loss of marriage prospects as well. 13. Thus, while recomputing the compensation for permanent disability and consequent loss of earning capacity, with the revised percentage of disability as well as monthly income, amount receivable by the appellant under this head comes to Rs.10,77,120/- (12000 x 12 x 17 x 44/100). The Tribunal has awarded an amount of Rs.7,14,000/- and hence the balance amount receivable by the appellant would come to Rs.3,63,120/-. It is seen that the Tribunal has awarded compensation for loss of income for a period of six months at the rate of Rs.10,000/- per month. Consequent to the revision of monthly income as Rs.12,000/- the appellant is also entitled for a further amount of Rs.12,000/- under this head. Thus the total additional compensation receivable by the appellant comes to Rs.3,75,120/-. 14. The next aspect to be considered is the contention put forward by the the Cross Objector/1[st] respondent. As mentioned above the Cross Objector/1st respondent, places reliance upon Annexure A1 document which is the driving license particulars of driving license No.38/884/1992 with badge No.38/443/1995. The M.A.C.A.No.2460/2015 & C.O.No.2/20 10 said document would indicate that he was authorized to drive motor cycle with gear, autorikshaw, light motor vehicle, heavy passenger motor vehicle and heavy goods motor vehicle, with the authorization to drive transport vehicles. In this case, the accident occurred on 18.04.2007 and from the details of renewal of the license, it is seen that the authorization to drive transport vehicles stood valid during the period from 26.05.2004 to 25.05.2007. From the above, it is evident that on the date of accident, the 1[st] respondent was duly licensed. In the light of the above, the finding of the Tribunal that he was not duly licensed at the time of accident is to be set aside. Consequently, the permission granted by the Tribunal to the 2[nd] respondent to recover the amount of compensation from the 1[st] respondent is also to be set aside. 15. In such circumstances, the appeal as well as Cross Objection are allowed. The award is modified by granting an additional compensation of Rs.3,75,120/- (Rupees Three lakhs seventy five thousand one hundred and twenty only) and the 2[nd] respondent insurance company is directed to deposit the said amount along with interest at the rate of 7.5% per annum from the date of petition along with proportionate costs within a period of three months from the date of receipt of a copy of this judgment. M.A.C.A.No.2460/2015 & C.O.No.2/20 11 The finding of the Tribunal regarding the lack of driving license of the 1[st] respondent is also set aside. Accordingly, the direction/finding of the Tribunal enabling the 2[nd] respondent to recover the amount of compensation from the 1[st] respondent is also set aside. Sd/- **ZIYAD RAHMAN A.A. JUDGE** DG/20.9.21