LIJUMON v. SUNEER and SHEREEF and BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LIMITED

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE MARY JOSEPH`** ## **`FRIDAY, THE 3[RD] DAY OF MARCH 2023 / 12TH PHALGUNA, 1944`** ## **`MACA NO. 1813 OF 2013`** ``` AGAINST THE AWARD DATED 05.01.2013 IN O.P(M.V) NO.42/2009 OF MOTOR ACCIDENTS ``` ## **`CLAIMS TRIBUNAL, PALA`** ## **`APPELLANT/PETITIONER:`** ``` LIJUMON, S/O SUGUNAN, KALEKKATTU HOUSE, EZHUPUNNA (P.O), CHERTHALA, ALAPPUZHA DISTRICT ``` ``` BY ADVS. SRI.THOMAS ABRAHAM (NILACKAPPILLIL) SRI.K.B.ARUNKUMAR ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1SUNEER, S/O ASHRAFF, VANCHIPURACKAL HOUSE, THIRUMALA BHAGOM (P.O), KUTHIATHODE PANCHAYATH, 2ND WARD, ALAPPUZHA DISTRICT 688540 ``` ``` 2SHEREEF S/O ALIARKUNJU, VANCHIPURACKAL HOUSE, THIRUMALA BHAGOM (P.O), KUTHIATHODE PANCHAYATH, 2ND WARD, ALAPPUZHA DISTRICT 688540 3THE MANAGER BAJAJ ALLIANZ GENERAL INSURANCE COMPANY LIMITED, 3RD FLOOR, FINANCE TOWER, STOCK EXCHANGE, KALOOR, ERNAKULAM 682017 ``` ``` BY ADVS. ``` ``` JOHNSON MATHEW MANAYAN LALGEORGE GEORGE JEEVAN MATHEW MANAYANI SEBASTIAN VARGHESE(K/141/2000) ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 1813 OF 2013 ``` ``` 2 ``` ## JUDGMENT ## Dated this the 03[rd] day of March, 2023. This appeal is filed challenging an award passed by Motor Accidents Claims Tribunal, Pala (for short, ‘the Tribunal’) on 05.01.2013 in O.P(M.V) No.42/2009. The appellant was the petitioner before the Tribunal. He met with a motor accident at about 10 am on 10.09.2008 near SNDP Junction in ThuravoorEzhupunna public road. While he was riding his motorcycle bearing Registration No.KL-32/6626 from north to south, an autorickshaw bearing registration No.KL-32/5784 proceeding from the opposite direction dashed against and thereby he sustained injuries. He was rushed to Medical College Hospital, Kottayam. Alleging negligent driving of the autorickshaw by it’s driver as the cause of the motor accident in question and raising a claim of `4,00,000/- as compensation, the above Original Petition was filed. 2. For the sake of convenience, the parties to this appeal will hereinafter be referred to as the petitioner and ``` MACA NO. 1813 OF 2013 ``` ``` 3 ``` respondents 1 to 3, in accordance with their status in the Original Petition. 3. The driver, the owner and the insurer of the autorickshaw were arrayed as respondents 1 to 3 in the Original Petition. Respondents were served with notice. Respondents 1 and 2 took contentions that claim of compensation under various heads was devoid of any basis, that the 1[st] respondent was holding a valid learners driving licence at the time of the motor accident, that a duly licenced instructor was accompanying him at the relevant time for providing necessary instructions to him and that the petitioner himself has caused the motor accident by his negligence. The offending autorickshaw was admittedly insured with the 3[rd] respondent. 4. The 3[rd] respondent has contended in it’s written statement that the autorickshaw was driven by the 1[st] respondent without holding a valid driving licence and therefore, the investigating officer had chargesheeted him for offences punishable under the Indian Penal Code, 1860 (for ``` MACA NO. 1813 OF 2013 ``` ``` 4 ``` short, ‘I.P.C) as well as Section 3(1) read with Section 177 of the Motor Vehicles Act, 1988. Compensation claimed in the Original Petition was also disputed for its exorbitant nature. The motor accident was allegedly caused due to riding of the motorcycle by it’s rider in a rash and negligent manner. The claim of the petitioner that he suffered disability following the motor accident was also disputed. 5. Evidence was adduced by both sides in the above Original Petition and it incorporates the oral evidence tendered by PW1 and Exts.A1 to A22. On the side of the respondents, two witnesses were examined as RW1 and RW2 and Exts.B1 to B6 were also marked in evidence. Based on the evidence, the Tribunal arrived at a finding that the motor accident in question was occurred due to the rash and negligent driving of autorickshaw bearing registration No.KL-32/5784 by its driver, who was arrayed as the 1[st] respondent in the Original Petition. The Tribunal also found that at the time when the motor ## **`MACA NO. 1813 OF 2013`** ``` 5 ``` accident had taken place, the 1[st] respondent was driving the autorickshaw without a valid driving licence. 6. The Tribunal arrived at `2,14,323/- as the compensation payable to the petitioner and directed the 3[rd] respondent to deposit the same with interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of deposit alongwith proportionate cost. Aggrieved by the quantum stood awarded by the Tribunal as compensation in his favour, this Court is approached by the petitioner. 7. As per the claims of the petitioner, he was a Coolie worker in a quarry, earning `6,000/- monthly. But, the Tribunal confined it’s consideration to `3,500/- notionally. Petitioner alleges the above fixation as unreasonable and urged for re-fixation of a higher sum. 8. The contention furthermore raised was that the petitioner had sustained several grievous injuries and treatment was availed for a long time. But, Tribunal awarded only lesser sums as compensation under various heads. According to him, ``` MACA NO. 1813 OF 2013 ``` ``` 6 ``` the Medical Board associated with Medical College Hospital, Kottayam had examined the petitioner and issued a certificate assessing 26% as his permanent disability, but, the Tribunal failed to consider the percentage as such for the purpose of assessment of compensation. According to him, valid reasons were stated in the Certificate assessing disability and marked in evidence as Ext.X1, but the Tribunal overlooked those reasons and considered only 12% as the permanent disability of the petitioner and calculated compensation on it’s basis. According to him, the Tribunal erred in considering only 12% as the permanent disability of the petitioner against 26% fixed by the Medical Board. 9. The learned counsel contended furthermore that in view of the grievous injuries sustained, the petitioner must have suffered much pain and discomforts and inconveniences as well. According to him, the Tribunal ought to have accounted those while arriving at the compensation payable under those heads. The learned counsel canvassed for modification of the ``` MACA NO. 1813 OF 2013 ``` ``` 7 ``` compensation stood awarded by the Tribunal on various counts as discussed above. 10. The learned counsel for the 1[st] respondent urged that the 1[st] respondent as driver of the offending autorickshaw involved in the motor accident has contended in his written statement that he was holding a valid learner’s driving licence at the relevant time of the motor accident. He claimed to have produced and marked in evidence copies of the driving licence particulars, the learner’s driving licence and also the driving licences obtained by him at a later point of time as Ext.B1 and Exts.B4 to B6. It is contended by the learned counsel that the date of accident is well covered by the period of validity of the learner’s driving licence. The specific contention raised by the learned counsel for the 1[st] respondent was that since the 1[st] respondent was holding a valid learner’s driving licence and it stood established from the oral evidence tendered by himself as well as the person accompanying him in the vehicle that the 1[st] respondent was driving the vehicle at the relevant time with the ``` MACA NO. 1813 OF 2013 ``` ``` 8 ``` required authority. According to him, the Tribunal failed to appreciate the evidence let in by the 1[st] respondent in it’s proper perspective and thereby erred in taking a view that the 1[st] respondent was not holding an authority to drive the vehicle and thereby permitting the 3[rd] respondent to recover the compensation from him. 11. This Court is noticed from the pleadings of the petitioner that he was working as a Coolie worker in a quarry and earning `6,000/- monthly. Evidence of any nature having not been let in, the Tribunal took `3,500/- as his monthly income. Petitioner being a Coolie worker, won’t be in a position to establish his monthly income. In the above circumstances, this Court finds justification in fixing the monthly income in tune with the fixation of `4,500/- by the Apex Court in the case of a Coolie worker in Ramachandrappa vs. Manager, Royal Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]. Therefore, the motor accident in the case in question having been occurred in the year 2008, ``` MACA NO. 1813 OF 2013 ``` ``` 9 ``` `6,500/-, a sum corresponding to that year is refixed as the monthly income. 12. Loss of earning was calculated by the Tribunal by considering a period of six months as the period for which the petitioner was unable to attend his work. As established from Ext.A5, the Accident Register cum Wound Certificate, Exts.A6 to A9 Discharge Cards, Exts.A10 to A13 and Exts.A18 and A19 O.P Tickets and Ext.A14 Discharge Book, petitioner had sustained type-III open fracture of both bones of right leg and type-I comminuted fracture of right patella. He had also sustained several other injuries. As procedures of treatment, wound debridement, total patellectomy, Quadriceps repair and external skeletal fixation were done. The raw area at the injury site was reported as persisting throughout the treatment, and therefore, he was subjected to skin grafting. Thereafter, he was referred to a local hospital for continuous cleaning and saline dressing on alternate days. Medication was adviced throughout. Thereafter, ILN and bone grafting were done. The first spell of ## **`MACA NO. 1813 OF 2013`** ``` 10 ``` hospitalization was from 10.09.2008 till 25.09.2008, the second spell was from 29.07.2009 till 18.08.2009, the third spell, from 22.10.2008 till 31.10.2008 and the fourth spell, covers the period from 27.05.2010 till 30.05.2010. Thus, the petitioner had inpatient treatment for 51 days in total. OP treatment followed that till 01.10.2019. However, the fracture was reported as not united. 13. When viewed in the backdrop of the discussion made hereinabove, this Court notices that the compensation stood awarded towards pain and suffering and loss of amenities and inconveniences are disproportionate and inadequate. Therefore, this Court finds it reasonable to modify the compensation stood awarded by the Tribunal. As compensation towards pain and suffering and loss of amenities and inconveniences in life caused by the accident, `40,000/and `20,000/- respectively were awarded additionally. Loss of earning was considered by the Tribunal only for six months. Having due regard to the severe nature of the injuries, this ``` MACA NO. 1813 OF 2013 ``` ``` 11 ``` Court modifies the period to ten months. The monthly income was already fixed by this Court as `6,500/-. When loss of earning is considered with the above modified factors, `65,000/- (`6,500/- x 10) is arrived at. `21,000/- stood awarded by the Tribunal by the impugned award when adjusted in the above sum, petitioner will get `44,000/- as additional compensation. To establish expenses incurred on transportation, the petitioner produced Ext.A17 series and `14,380/- is shown there as spent. The Tribunal confined it’s award under the head to `3,000/-. Ext.A17 series stood not proved. Having due regard to the duration of treatment, `12,000/- is awarded as compensation. `3,000/- stood awarded by the Tribunal when adjusted against, petitioner will get `9,000/- as additional compensation towards transportation expenses. As compensation towards bystander ` expenses, 17,250/- is found awarded by the Tribunal. This Court is reluctant to interfere with, it being a reasonable sum. As compensation towards extra nourishment, `1,000/- stood ## **`MACA NO. 1813 OF 2013`** ``` 12 ``` awarded by the Tribunal being too low, `7,000/- is awarded and thus, the petitioner will get `6,000/- (`7,000/- - `1,000/-) as additional compensation. As compensation towards damages to clothing, `500/- more is also awarded to raise it to `1,000/-. 14. Ext.X1 is marked in evidence from the petitioner’s side which is nothing but a Certificate where the permanent disability of the petitioner was certified and issued by the Medical Board associated with Medical College Hospital, Kottayam. The permanent disability of the petitioner was certified there as 26%. In Ext.X1, thickness of right knee, ankle with flap cover and osteomyelitis were stated as reasons while . certifying 26% as petitioner’s disability As I have already stated, non union of fracture was reported throughout the period of the inpatient treatment. Raw area was also reported infected. Therefore, the Tribunal is unjustified in considering only lesser percentage of disability than that was assessed by the Medical Board. There is every reason to consider 26% as ``` MACA NO. 1813 OF 2013 ``` ``` 13 ``` certified by the Medical Board in Ext.X1, as the disability of the petitioner and to reassess the compensation payable on its basis. In the calculation afresh with the modified factors, `3,65,040/- is arrived at (`6,500/- x 12 x 18 x 26/100). `90,720/- stood awarded by the Tribunal when adjusted against the sum now arrived at, the petitioner will get `2,74,320/- as additional compensation. 15. In the manner of re-assessment as above, the petitioner will get `3,93,820/- (Rupees Three Lakh Ninety Three Thousand Eight Hundred and Twenty only) [(`40,000+ `20,000/- + `44,000/- + `9,000/- + `6,000/- + `500/- + `2,74,320/-] as total additional compensation and the said amount will carry interest at the rate of 7.5% per annum from the date of filing of the Original Petition till the date of realisation. The 3[rd] respondent shall credit the above sum with interest fixed as above within two months from the date of receipt of a certified copy of this judgment, in the account of the petitioner as per directions issued by this Court in Circular ## **`MACA NO. 1813 OF 2013`** ``` 14 ``` No.03/2019 dated 06.09.2019. Petitioner shall furnish the Bank Account particulars to the insurer forthwith for compliance of the direction above. 16. First respondent had taken a contention in his written statement that he was holding a learner’s driving licence at the relevant time of the motor accident. 1[st] respondent as RW2 deposed the factum before the Tribunal and had also examined a witness as RW1. RW1 has stated before the Tribunal that he knows driving and was accompanying RW2 in the vehicle. Thus, it is established that RW1 was travelling alongwith RW2 in the vehicle as his instructor. When viewed in the above backdrop, this Court has no hesitation to hold that the Tribunal is unjustified and erred in absolving the insurer from liability to indemnify the insured by permitting it to have the compensation recovered from the 1[st] and 2[nd] respondents. 17. The Tribunal has discarded the testimony of RW2 for the reason that he is an interested witness. The Tribunal also discarded the version of RW1 for the reason that his presence in ``` MACA NO. 1813 OF 2013 ``` ``` 15 ``` the vehicle at the relevant time was not reflected in any of the criminal case documents marked in evidence. This Court also notices that even in the Final Report marked in evidence as Ext.A1, a mention is not made about the presence of a person accompanying the 1[st] respondent as an instructor while the autorickshaw was driven by him at the relevant time. True that RW2 was holding a valid learner’s driving licence at the relevant time but in the absence of any cogent and credible evidence to show that he was accompanied by RW1 at the relevant time when the autorickshaw met with the motor accident, the finding of the Tribunal can only be taken as correct. Furthermore, 1[st] and 2[nd] respondents failed to challenge the finding of the Tribunal as above by preferring an appeal. In the above circumstances, the argument advanced by the learned counsel for the 1[st] respondent is not liable to be given credit to. 18. In the above circumstances, the permission already granted by the Tribunal to have the compensation amount with ``` MACA NO. 1813 OF 2013 ``` **==> picture [241 x 8] intentionally omitted <==** interest and cost recovered from the 1[st] and 2[nd] respondents, after depositing the same infavour of the petitioner is only to be maintained. This Court do so. Appeal succeeds and is allowed accordingly. ``` Sd/- ``` MARY JOSEPH JUDGE JJ