MACA No. 1971 of 2012 (Against the Award dated 09.03.2012 in OP(MV) 411/2007 of Motor Accidents Claims Tribunal, Manjeri)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 16[TH] DAY OF FEBRUARY 2024 / 27TH MAGHA, 1945** ## **MACA NO. 1971 OF 2012** **AGAINST THE AWARD DATED 09.03.2012 IN OP(MV) 411/2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, MANJERI** ## **APPELLANT/PETITIONER:** **ABOOBACKER S/O.HASSANKUTTY, ALANGADAN HOUSE, KARKIDAKAM P.O., MALAPPURAM DISTRICT.** **BY ADV SRI.P.VENUGOPAL (1086/92)** ## **RESPONDENTS/RESPONDENTS:** - **1 E.SAYED AHAMED S/O.SAYED IMAM, 11/336, KASIMVAYAL, GUDALLUR P.O., NILGIRIS, TAMILNADU, PIN-643212.** - **2 CHERALATHAN S/O.SHANMUGHAM D.NO.11/341 C.H. KALKUVARI ROAD, GUDALLUR P.O., NILGIRIS, TAMILNADU, PIN-643212.** - **3 UNITED INDIA INSURANCE COMPANY LIMITED CHRISTO BUILDING, BANK ROAD, OOTTY P.O., TAMILNADU, PIN-643001.** **BY ADV SMT.P.A.REZIYA** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 16.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** M.A.C.A No.1971 of 2012 2 ## **JUDGMENT** The appellant was the petitioner in O.P(M.V) No. 411/2007 on the files of the Motor Accidents Claims Tribunal, Manjeri. The said claim petition was submitted by the appellant seeking compensation for injuries sustained to him in a motor accident that occurred on 18.05.2006. 2. The accident occurred when the scooter ridden by the appellant was hit by a lorry driven by the 1st respondent, owned by the 2nd respondent and insured with the 3rd respondent. The appellant was a merchant with a monthly income of Rs.5,000/- and was aged 53 years. According to him, he sustained very serious injuries in the accident and he suffered physical disability consequent to the same. The claim petition was submitted in such circumstances. 3. The 3rd respondent alone contested the matter. They contended that they had not issued any policy for the vehicle bearing registration No.TN 45E 6333 at the time of the accident. According to them, the policy issued by them was in respect of the vehicle bearing registration No.TN 43E 6333. 4. The evidence in this case consists of Exts.A1 to A9 series. The Medical Board report relating to the disability of the appellant was marked as Ext.X1. After the trial, the Tribunal found that the accident M.A.C.A No.1971 of 2012 3 occurred due to negligence on the part of the 1st respondent. However, it was found that, the vehicle was not covered with a valid policy and therefore the 3rd respondent was exonerated from liability. The quantum of compensation was fixed as Rs.3,88,526/- and the said amount was to be recovered from the 1st and 2nd respondents, with interest at the rate of 9% per annum from the date of petition till realisation and proportionate cost. This appeal is submitted by the appellant challenging the exoneration of the insurance company and seeking enhancement of compensation. 5. Heard, Sri.P Venugopal, the learned counsel appearing for the appellant and Smt. P.A Raziya, the learned counsel appearing for the 3rd respondent. 6. As far as the liability of the insurance company is concerned, initially a memo has been submitted by the 3rd respondent through the learned counsel appearing for them to the effect that, the policy bearing No.170500/31/05/01/00003975 for the period from 02.02.2006 to 01.02.2007 has been issued in respect of vehicle No.TN-43-E-6333. Along with the said memo, a copy of the policy was also produced wherein the number was wrongly mentioned as TN 43-E 6333. However, the name of the insured shown in the policy was that of the 2nd respondent. Later, a further memo as directed by this Court was M.A.C.A No.1971 of 2012 4 submitted by the 3rd respondent on 14.02.2024 with the following averments. “It is respectfully submitted that, in the statement dated 31/01/2024, filed by the third respondent, the registration number of the vehicle involved in the accident was wrongly noted as TN-45-633 instead of TN 45-E 6333. The correct number of the vehicle involved in the accident to which this respondent has issued the policy is TN 45 E 6333 with Chasis No.373012 MUQ 737924 and Engine Number 697D22MUQ 808842. Hence the policy of the offending vehicle involved in the accident is admitted by this respondent.” 7. It is evident from the records that at the time of filing the written statement they had correctly identified the vehicle but yet taking advantage of the mistake in the registration number mentioned in the policy certificate, they raised a contention denying the coverage of the policy. Only later, the said mistake was rectified when the appellant/claimant was forced to take up the matter in appeal to this Court by specifically raising this contention. The consequence of the same is that the appellant was denied rightful compensation to him, due to a mistake committed by the officers concerned of the 3rd respondent. Even though the Tribunal passed an award permitting the appellant to recover the compensation from the owner and driver, it is reported that so far the said amount could not be recovered from them. M.A.C.A No.1971 of 2012 5 Therefore, it is evident from the records that, the appellant was deprived of the rightful compensation for a long period of 17 years only because of the mistake committed on the part of the 3rd respondent. Therefore, this is a fit case in which some additional compensation needs to be granted towards the litigation expenses which the appellant incurred. Thus, while setting aside the finding of the Tribunal to the effect that the vehicle was not covered with a valid policy and holding that the 3rd respondent is responsible to pay the compensation, I am inclined to grant some amount towards litigation expenses. It is to be noted in this regard that, in **Sidram v. United India Insurance Company Ltd. [2022 (6) KLT ONLINE 1019],** the Honourable Supreme Court considered the necessity for granting litigation expenses, after elaborately considering various decisions rendered by the Honourable Supreme Court in **New India Assurance com Ltd v. Gopali and Others [2012 (12) SC 198], Syed Sadiq & Ors. v. Divisional Manager, United India Insurance Company Ltd. [2014 (2) SCC 735] and Balram Prsad v. Kunal Saha [2014 (1) SC 384].** In the said case an amount of Rs.50,000/- was awarded as litigation expenses. The reason for awarding the litigation expenses was that, the claimant therein was unnecessarily dragged to the Honourable Supreme Court and was compelled to incur expenses for settling a claim for which he was eligible. In this case, the compensation was denied to M.A.C.A No.1971 of 2012 6 the appellant despite his eligibility to get the same from the 3[rd] respondent, for a period of 17 years. In such circumstances, some amount is required to be granted and in the facts and circumstances of the case, I deem it appropriate to fix it as Rs.10,000/-. 8. The next aspect to be considered is the quantum of compensation. This is a claim submitted by the appellant seeking compensation for personal injuries and the appellant claims that he was a merchant with a monthly income of Rs.5,000/-. Ext.X1 was the disability certificate issued wherein the extent of disability was certified as 35.6%. The Tribunal accepted the same but the monthly income taken by the Tribunal was Rs.3,000/- which appears to be on the lower side. Considering the fact that the accident occurred in the year 2006 under no circumstances the claim of Rs.5,000/- could be treated as unreasonable and therefore the said amount is accepted. When reworking the compensation with the revised monthly income the appellant would be entitled to a compensation of Rs.2,34,960/- (5,000 x 12 x 11 x 35.6/100) for disability. The amount already awarded by the Tribunal is Rs.1,40,976/-. Thus the additional amount under this head would come to Rs.93,984/-. 9. Consequent to the revision of monthly income, the appellant would be entitled to additional compensation under the head of loss of earnings. The compensation awarded by the Tribunal under this head M.A.C.A No.1971 of 2012 7 was for a period of six months. In the light of the revision of monthly income, an additional sum of Rs.12,000/- is granted under the said head. The amount awarded by the Tribunal towards pain and suffering was Rs.17,500/- which appears to be very low. It is evident from the records that he had undergone inpatient treatment for a period of 98 days and even after the said period he continued his treatment. Therefore, the amount of Rs.17,500/- awarded by the Tribunal appears to be on the lower side. Therefore, a further sum of Rs.17,500/- is awarded under the said head. 10. Similarly, it is evident from the records that, the appellant sustained physical disability to the extent of 35.6% and it will have a serious impact on the quality of his life. Despite the above, no amount is seen granted towards the loss of amenities. Considering the facts and circumstances of the case I deem it appropriate to grant an amount of Rs.30,000/- under this head. Thus the total additional compensation is determined as Rs.1,63,484/- [93984+10000+12000+17500+30000]. In the result, this appeal is allowed. The award dated 09.03.2012 passed by the Motor Accident Claims Tribunal, Manjeri, in O.P(M.V) No. 411/2007 is hereby set aside to the extent it exonerated the insurance company from the liability. It is held that the vehicle involved in the accident was covered with a valid insurance policy at the relevant time and the 3rd respondent is liable to pay the entire compensation M.A.C.A No.1971 of 2012 8 awarded. The quantum of compensation is reassessed as Rs.5,52,010/(Rupees five lakhs fifty-two thousand and ten only)(163484+388526) and the said amount shall be deposited by the 3rd respondent with interest at the rate as ordered by the Tribunal and with proportionate cost within a period of three months from the date of receipt of a copy of this judgment. It is further ordered that, the claimant shall furnish the details of PAN card, Aadhar Card and Bank details to enable the insurance company to make the deposit as ordered above within a period of two months from the 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 said amount before the Tribunal. **==> picture [26 x 13] intentionally omitted <==** ## **ZIYAD RAHMAN A.A.** **JUDGE** rpk