MACA NO. 1934 OF 2010

MACA NO. 1934 OF 2010 1 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 3[RD] DAY OF MARCH 2022 / 12TH PHALGUNA, 1943** **MACA NO. 1934 OF 2010** **AGAINST THE ORDER/JUDGMENT IN OPMV 999/2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOLLAM** ## **APPELLANT/S:** JAYAKUTTANS/O. KRISHNAPILLAI, AMBADIYIL VEEDU, KALARI WARD,, PANMANA, KOLLAM. BY ADV SRI.PRATHEESH.P ## **RESPONDENT/S:** 1 SHIJU, VADAKKAETHOPPIL, PUTHENTHURA,CHAVARA P.O., KOLLAM. 2 BABU VADAKKAETHOPPIL, PUTHENTHURA, CHAVARA P.O., KOLLAM. * 3 THE DIVISIONAL MANAGER THE NEW INDIA INSURANCE CO.LTD. KOLLAM. [DELETED] THE 3RD RESPONDENT IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 03.03.2022 IN IA.2698/2018 4 ADDL.R 4 THE DIVISIONAL MANAGER M/S THE NATIONAL INSURANCE CO LTD,KOLLAM 691001 IS IMPLEADED AS ADDL R4 AS PER ORDER DATED 3/10/2018 IN IA NO.3/18 IN MACA 1934/2010. BY ADVS. SRI.P.G.GANAPPAN SRI.GEORGE CHERIAN THIRUVALLA THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA NO. 1934 OF 2010 2 ## **JUDGMENT** The appellant was the petitioner in OP(MV) No.999/2006 on the file of the motor Accidents Claims Tribunal, Kollam. The present respondents in the appeal were the respondents before the Tribunal. The appellant had mistakenly impleaded 'the New India Insurance Co. Ltd.' as the 3[rd] respondent in the appeal. Subsequently the appellant got the said respondent deleted from the party array and impleaded the present additional 4[th] respondent. Therefore, the parties are referred, for the sake of convenience, as per their status before the Tribunal. 2. The petitioner had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries sustained to him in an accident on 03.02.2006. It was his case that, on the above said date, while he was traveling on a motorcycle bearing registration No.KL 7W 2843 along the Kollam – Alappuzha National Highway, another motorcycle bearing registration No.KL 2X 6215 (the offending motorcycle), driven by the 2[nd] respondent in a negligent manner, hit the motor cycle of the appellant. The petitioner fell down and sustained serious injuries including a fracture of his left clavicle. He was treated at the District Hospital, Kollam and at the KIMS MACA NO. 1934 OF 2010 3 Hospital, Thiruvananthapuram for a period of six days. The petitioner had claimed that he was self employed and was earning a monthly income of Rs.3,000/-. The offending motor cycle was owned by the 1[st] respondent and was insured with the 3[rd] respondent. Hence, the petitioner had claimed a compensation of Rs.1,00,000/- from the respondents. 3. The respondents 1 and 2 did not contest the proceeding and were set ex-parte. 4. The 3[rd] respondent had filed a written statement admitting that the offending motor cycle had a valid insurance coverage. However, it was contended that the 2[nd] respondent did not hold a valid driving license. Therefore, the 3[rd] respondent prayed for exoneration of its liability. The 3[rd] respondent also disputed the age, income and occupation of the petitioner. 5. The petitioner got himself examined as PW1 and marked Exts.A1 to A13 in evidence. In the proof affidavit filed in lieu of the chief examination, the petitioner stated that he was permanently employed as a Worker Grade II in the Titanium Dioxide Pigment Unit of KMML, Kollam and was earning a monthly income of Rs.11,175/-. To substantiate his contentions, he produced Exts.A10 and A11 to prove his salary and the leave MACA NO. 1934 OF 2010 4 availed by him for a period of 45 days. 6. The respondents did not let in any evidence. 7. The Tribunal, after analysing the pleadings and materials on record, arrived at a conclusion that the 1[st] respondent had violated the insurance policy conditions because the 2[nd] respondent did not produce his valid driving license. Therefore, the Tribunal exonerated the 3[rd] respondent and directed the respondents 1 and 2 to pay the petitioner an amount of Rs.27,480/- with interest and proportionate cost. 8. Aggrieved by the exoneration of the 3[rd] respondent and dissatisfied with the quantum of compensation awarded by the Tribunal, the petitioner is in appeal. 9. Heard Sri. Pratheesh P., the learned counsel appearing for the appellant/petitioner and Sri. P. G. Ganappan, the learned counsel appearing for the additional 4[th] respondent/3[rd] respondent-insurer. 10. The points that arise for consideration in the appeal are: - (i) Whether the exoneration of the 3[rd] respondent/insurer is justifiable in law ? - (ii) Whether the quantum of compensation awarded by MACA NO. 1934 OF 2010 5 ## the Tribunal is reasonable and just ? ## **Question No.1** 11. The definite case of the petitioner was that the accident occurred due to the negligence of the 2[nd] respondent. The 3[rd] respondent contended that the 2[nd] respondent did not hold a valid driving license, therefore, the 1[st] respondent had violated the insurance policy conditions. On the basis of the contention, the Tribunal exonerated the 3[rd] respondent of its liability. 12. The course adopted by the Tribunal is erroneous and in egregious violation of Section 149 of the Motor Vehicles Act, 1988 and the law laid down in **Iyyapan vs. United India Insurance Company and another** [2013 KHC 4461], and a plethora of decisions on the point. The proper course of the Tribunal was to direct the 3[rd] respondent to pay the compensation amount to the petitioner and recover the same from the 1[st] respondent, the owner of the offending motor cycle. 13. In the above factual and legal matrix, I set aside the exoneration of the 3[rd] respondent and hold that the 3[rd] respondent is liable to pay the compensation amount and recover it from the 1[st] respondent. Accordingly, I answer Question No.(i) in favour of the petitioner. MACA NO. 1934 OF 2010 6 ## **Question No.(ii)** 14. Even though the petitioner had pleaded in the claim petition that he was a self employed person and was earning a monthly income of Rs.3,000/-, during trial, he filed a proof affidavit and produced Exts.A10 and A11 to substantiate that he had availed leave for a period of 45 days and that he was a permanent Worker Grade II in the Titanium Dioxide Pigment Unit KMML, Kollam. 15. The Tribunal on the basis of Ext.A11 and suo motu taking note of the disability of the petitioner, awarded him an amount of Rs.12,480/- towards loss of earning capacity. I confirm the said finding. Nevertheless, the Tribunal failed to award loss of earnings on the basis of Ext.A10 certificate, which states that the petitioner was on leave for the period from 03.02.2016 to 18.03.2006 i.e., for a period of 45 days. As the petitioner was drawing a monthly salary of Rs.11,175/- I fix his daily income at Rs.372/- and award him an amount of Rs.16,740/- towards 'loss of earnings'. ## **Loss of amenities** 16. Taking into account the fact that the petitioner had sustained a fracture to his clavicle, that he was treated as an MACA NO. 1934 OF 2010 7 inpatient for a period of 6 days and was found by the Tribunal to have a disability of 4%, I award him an amount of Rs.10,000/under the head 'loss of amenities'. 17. With respect to the other heads of compensation, I find that the Tribunal has awarded reasonable and just compensation. In the result, the appeal is allowed by enhancing the compensation by an amount of Rs.26,740/- (i.e. an enhancement of Rs.16,740/- under the head 'loss of earnings' + Rs.10,000/under the head 'loss of amenities') with interest @ 7% per annum from the date of petition till the date of deposit, after deducting interest for a period of 125 days i.e., the period of delay in filing the appeal and as ordered by this Court on 07.02.2018 in C.M. Appln. No.2479/2010, and a cost of Rs.5,000/-. The additional 4[th] respondent/3[rd] respondent/ insurer is ordered to deposit the compensation amount of Rs.27,480/-, rounded off to Rs.27,500 awarded by the Tribunal and the enhanced compensation of Rs.26,740/- awarded by this Court, totaling to an amount of Rs.54,240/- with interest at the rate of 6% per annum from the date of petition till the date of realisation and a cost of Rs.5,000/-, within a period of 60 days MACA NO. 1934 OF 2010 8 from the date of receipt of a copy of this judgment. The additional 4[th] respondent is directed to pay the above amount and permitted to recover the said amount from the 1[st] respondent in accordance with law. Immediately on the compensation amount being deposited, the Tribunal shall disburse the deposited amount to the appellant in accordance with law. Sd/- **C.S.DIAS, JUDGE** rkc/03.03.22