KUTTAN A.P. v. Praveen K, Rahim S. Abdul, United India Insurance Co. Ltd.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. MONDAY, THE 4[TH] DAY OF DECEMBER 2023/13TH AGRAHAYANA, 1945 ``` ## **`MACA NO. 200 OF 2010`** ## **`OPMV 1328/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,`** ## **`IRINJALAKUDA`** ## **`APPELLANT/PETITIONER:`** ``` KUTTAN A.P. ARAVEETTIL HOUSE, PERINJANAM P.O.,, THRISSUR DISTRICT. ``` ``` BY ADV SRI.N.KRISHNANKUTTY PILLAI ``` ## **`RESPONDENTS/DEFENDANTS:`** - `1 PRAVEEN K 238/1, PULAKALPARAMBIL HOUSE,, KAIPPAMANGALAM P.O., THRISSUR DISTRICT.` - `2 MR.RAHIM SO.ABDUL KHADAR VALIYAKATHUVEETTIL HOUSE,, KOORIKUZHY DESOM, KAIPAMANGALAM P.O.,, THRISSUR DISTRICT.` - `3 THE MANAGER UNITED INDIA INSURANCE CO. LTD.,, BRANCH OFFICE, IRINJALAKUDA, THRISSUR DISTRICT. BY ADVS. C.A.CHACKO JOHN JOSEPH VETTIKAD` ## **`THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR`** ## **`ADMISSION ON 04.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:`** M.A.C.A. No.200/2010 : 2 : ## JUDGMENT The appellant was the petitioner in O.P.(M.V) No.1328/2004 on the files of the Motor Accidents Claims Tribunal, Irinjalakuda. The said claim petition was submitted by the appellant seeking compensation for the injuries sustained to him in a motor accident that occurred on 13.06.2004. 2. The accident occurred when he was travelling in an autorickshaw bearing registration No.KL8/D 1485 driven by the 2[nd] respondent, due to the rash and negligent driving of the 2[nd] respondent, it went off the road and hit a coconut tree. Consequent to the same, the appellant sustained serious injuries. The 1[st] respondent owned the said vehicle and it was insured with the 3[rd] respondent. According to the appellant, he was 48 years old and was working as a salesman with a monthly income of Rs.5000/-. The claim petition was submitted in such circumstances. 3. The 3[rd] respondent/Insurance company filed a written statement admitting the insurance coverage over the said vehicle M.A.C.A. No.200/2010 : 3 : but contended that the 2[nd] respondent had no driving licence at the time of the accident and the police registered a case against him under Section 3(1) of the Motor Vehicles Act. The quantum of compensation was also disputed by them. 4. The evidence in this case consists of Exts.A1 to A12 from the side of the appellant and Ext.B1 insurance policy was marked from the side of the respondent. After the trial, the Tribunal came to the conclusion that the accident occurred due to the negligence on the part of the 2[nd] respondent driver in driving the autorickshaw. Since it was found that the 2[nd] respondent was driving the autorickshaw without a valid driving license, the 3[rd] respondent/Insurance company was exonerated and respondents 1 and 2 were held jointly and severally liable to pay the compensation. The quantum of compensation was fixed as Rs.1,63,600/- and the appellant was permitted to recover the said compensation from the 1[st] and 2[nd] respondents with interest at the rate of 7% per annum from the date of petition till realisation. This appeal is submitted in such circumstances seeking enhancement of compensation. M.A.C.A. No.200/2010 : 4 : 5. Heard Sri. Krishnankutty Pillai, the learned counsel appearing for the appellant and Sri.C.A Chacko, the learned counsel appearing for the 1[st] respondent and Sri.John Joseph Vettikad, the learned counsel appearing for the 3[rd] respondent/ insurance company. 6. The learned counsel for the appellant firstly contended that the insurance company was exonerated from the liability, even though the finding of the Tribunal was only a violation of policy conditions. It was pointed out that, in such cases the proper course that ought to have been adopted by the Tribunal was to direct the insurance company to satisfy the award at the first instance, with a right to get the said amount recovered from the owner and the driver of the said vehicle. The learned counsel appearing for the 3[rd] respondent/Insurance company would oppose the aforesaid contention by pointing out that, in the memorandum of appeal, no such ground was raised and therefore, there is no challenge with respect to the finding of the Tribunal in this regard. 7. However, after considering the materials placed on record, I am inclined to accept the contention raised by the learned M.A.C.A. No.200/2010 : 5 : counsel for the appellant. Of course, it is true that, as rightly pointed out by the learned counsel for the 3[rd] respondent, no ground challenging the finding of the Tribunal exonerating the insurance company was raised in the memorandum of appeal. The owner of the vehicle against whom the liability was imposed also did not challenge the said finding. However, that by itself cannot be a reason to discard the said contention raised. This is particularly because as far as the provisions in the Motor Vehicles Act, 1988, relating to the compensation for motor accidents are concerned, those are part of welfare legislation intended to ensure speedy recovery of the compensation to the victims of the motor accident. It is also a well settled position of law that, the importance of the pleadings in a claim petition under section 166 of the Act, is relatively lesser than the other claims. Here in this case, as far as the exoneration of the insurance company is concerned, it is patent error in the award passed by the Tribunal, as it is a well settled position of law that in a case of violation of policy conditions, the insurance company has to be directed to pay the compensation at the first instance with the right to recover the same from the owner and the driver of the said vehicle. Thus, M.A.C.A. No.200/2010 : 6 : since the finding of the Tribunal is against the settled position of law, this Court has an obligation to rectify such an erroneous finding, when it was brought to the notice of this Court. The technicalities should not stand in the way of ensuring ‘just compensation’ to the victim as expeditiously as possible. Therefore, I am of the view that, the finding of the Tribunal, exonerating the Insurance company is to be set aside and it is ordered accordingly by holding that, the 3[rd] respondent/insurance company shall be liable to pay the compensation at the first instance, with a right to get the same recovered from the 1[st] and 2[nd] respondents. 8. The next aspect to be considered relates to the quantum of compensation. The learned counsel for the appellant challenges the assessment of compensation under the head of permanent disability mainly on two grounds. Firstly, the monthly income taken was on the lower side and secondly, the Tribunal did not consider the functional disability of the appellant. 9. As regards the monthly income, it is to be noted that, even though the appellant claimed to be a salesman with a monthly income of Rs.5,000/-, no evidence was adduced. The M.A.C.A. No.200/2010 : 7 : Tribunal took the monthly income as Rs.2,000/-. In the facts circumstances of the case, I am of the view that the said amount is on the lower side. It is to be noted that, in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236], even in respect of an ordinary employee, the Honourable Supreme Court has taken the monthly income as Rs.4,500/- in respect of an accident occurred in the year 2004, without any evidence. Therefore, I am of the view that Rs.4,500/can be fixed as the monthly income in this case. 10. When coming to the question of physical disability, it is to be noted that the tribunal relied on Ext.A11 disability certificate issued by an Orthopaedic Surgeon, Government Hospital, Irinjalakuda wherein the extent of disability was certified as 20%. The tribunal took note of the fact that, in the disability certificate, it was observed that the appellant has complaints of pain and stiffness on the left knee joint and also over the right knee and angle. He was working as a salesman, but now he cannot do his work since he cannot walk without support, and there is recurring oedema on both his legs and feet. Besides the same, the tribunal also observed that when the appellant was produced before the M.A.C.A. No.200/2010 : 8 : tribunal, he was not in a position to stand or walk without the support of any other persons. By placing reliance upon these aspects, the learned counsel for the appellant would point out that this is a case in which functional disability ought to have taken, considering the serious impact of the disabilities upon the earning capacity of the appellant. 11. The learned counsels appearing for the 1[st] respondent as well as the 3[rd] respondent oppose the said contention by pointing out that the certificate relied on by the appellant was issued by the Doctor who did not examine the appellant. The said Doctor was not examined before the court as a witness also. In such circumstances, the contents of the disability certificate as such cannot be accepted for the purpose of taking functional disability at a higher rate than certified in Ext.A11, it was contended. 12. However, I am not inclined to accept the said contention. This is particularly because, even though the Doctor who issued the Ext.11 certificate was not examined, it contains a detailed description of the nature of injuries and the impact of such injuries. The nature of the injuries and the consequences were M.A.C.A. No.200/2010 : 9 : also accepted by the tribunal after personal examination of the appellant. Therefore, I do not find any justifiable reason to doubt the veracity of the contents of the disability certificate produced as Ext.A11. In such circumstances, considering the nature of the injuries, the disability arising therefrom and the impact thereof, I find that is a case in which the functional disability ought to be taken. In the facts and circumstances of the case, I deem it appropriate to take the functional disability as 30% for the purpose of assessing compensation. Thus, while reassessing the compensation with the above-revised criteria, the amount of compensation for disability would come to Rs.2,10,600/- (4500 x 12 x 13 x 30/100). The tribunal awarded an amount of Rs.62,400/under this head. Thus, the additional compensation for disability would come to Rs.1,48,200/-. 13. In addition to the above, I am inclined to grant a further sum of Rs.10,000/- towards pain and suffering, in view of the fact that the amount of Rs.20,000/- awarded by the tribunal appears to be on the lower side when considering the nature of injuries sustained by the appellant. Similarly, after taking note of the nature of the injuries as well as the physical disability, a further M.A.C.A. No.200/2010 : 10 : sum of Rs.20,000/- is awarded towards the loss of amenities, as the amount of Rs.10,000/- awarded by the tribunal is inadequate. Thus, the total additional compensation would come to Rs.1,78,200/- (148200 + 10000 + 20000). The total compensation the appellant is entitled to, is determined as Rs 3,41,800/( 178200 + 163600). In the light of the aforesaid observations and findings, this appeal is allowed with the following orders: - (i) The finding of the tribunal exonerating the 3[rd] respondent insurance company is set aside, and it is held that, initial liability to satisfy the award shall be upon the 3[rd] respondent and they can recover the compensation from the 1[st] and 2[nd] respondents, after satisfaction of the award. - (ii) The quantum of compensation is re-assessed and fixed as Rs 3,41.800/- (Rupees three lakhs forty one thousand and eight hundred only) - (iii) The 3[rd] respondent shall deposit the said amount along with interest at the rate as ordered by the tribunal with proportionate costs. It is clarified that, after the satisfaction of the award, it shall be open for the 3[rd] respondent insurance company to recover the said compensation from the 1[st] and 2[nd] respondents. It is further clarified that, in case the amount awarded by the tribunal is already recovered from the 1[st] and 2[nd] respondents, the liability of the insurance company to pay the compensation would be limited to the balance amount to be recovered consequent to the M.A.C.A. No.200/2010 : 11 : enhancement granted and the said amount shall be deposited by the insurance company subject to the right of recovery granted to them. This appeal is disposed of with the above observations. Sd/ZIYAD RAHMAN A.A. JUDGE rpk/ncd/