MACA No. 202 of 2012 & CO No. 7 of 2022

`MACA NO. 202 OF 2012 & CO NO. 7 OF 2022` 1 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` MONDAY, THE 13[TH] DAY OF NOVEMBER 2023 / 22ND KARTHIKA, 1945 MACA NO. 202 OF 2012 ``` ``` AGAINST THE AWARD DATED 30.06.2020 IN OP(MV)NO.606/2008 OF ``` ## **`MOTOR ACCIDENT CLAIMS TRIBUNAL,KOZHIKODE`** ## **`APPELLANT/THIRD RESPONDENT IN OP(MV):`** ``` ICICI LOMBARD GENERAL INSURANCE CO.LTD 6/255/C, 2ND FLOOR, CITY PLAZA, YMCA CROSS ROAD,KOZHIKODE. REP. BY MANAGER (LEGAL) ``` ``` BY ADVS. SRI.K.B.RAMANAND SRI.R.AJITH KUMAR 12884 ``` ## **`RESPONDENTS / CLAIMANT & RESPONDENTS 1,2,4,5 AND 6 IN OP(MV):`** - `1 P.AMMAD, S/O.IBRAHIM, PADIYANGAL HOUSE, CHENOLI (PO),KOYILANDY, KOZHIKODE - 673525.` - `2 GIRISH KUMAR A.V. *(DELETED) S/O.GANGADHARAN, KARINGATTUMMAL HOUSE, ERAVATTUR (P.O)KOZHIKODE - 673001. *(RESPONDENT NO 2 IS DELETED FROM PARTY ARRAY AT THE RISK OF APPELLANT AS PER ORDER DATED 3/11/2021 IN IA 1/2021 IN MACA 202/2012).` - `3 LINEESH, S/O.MADHAVI AMMA, ALOKANDY HOUSE, MODAKKALLUR (P.O),ATHOLI, KOZHIKODE DISTRICT - 673321.` - `4 PRABHESH K.P., S/O.GOVINDAN P., KANHIRATHUM POYIL HOUSE, PODUVACHERY (P.O), KANNUR DISTRICT - 670621.` - `5 THE MANAGING DIRECTOR, AUTOMOTIVE MARKETING PVT.LTD., 39/105 A, KANNUR ROAD,PAVANGAD, KOZHIKODE - 673001.` - `6 THE ORIENTAL INSURANCE CO.LTD.DIVISIONAL OFFICE, PRAMOD BUILDING, CHEROOTY ROAD,KOZHIKODE - 673001. ADV LATHA SUSAN CHERIAN -SC R6, ADV .V.KRISHNA MENON- R5` ADV.SRI.JACOB ABRAHAM ``` THIS MACA HAVING COME UP FOR ADMISSION ON 13.11.2023, ALONG WITH CO.7/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` `MACA NO. 202 OF 2012 & CO NO. 7 OF 2022` 2 # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. ``` ``` MONDAY, THE 13[TH] DAY OF NOVEMBER 2023 / 22ND KARTHIKA, 1945 ``` ``` CO NO. 7 OF 2022 ``` ``` AGAINST THE AWARD DATED 30.06.2020 IN OP(MV)NO.606/2008 OF ``` ``` MOTOR ACCIDENT CLAIMS TRIBUNAL,KOZHIKODE ``` ## **`CROSS OBJECTOR/FIRST RESPONDENT:`** ``` P. AMMAD, AGED 55 YEARS S/O. IBRAHIM, PADIYANGAL HOUSE, CHENOLI POST, KOYILANDI, KOZHIKODE - 673525. ``` ``` BY ADV JACOB ABRAHAM ``` ## **`RESPONDENTS / APPEALLANT & RESPONDENTS 3 TO 6 (NAME OF R2 WAS`** ``` DELETED AS PER ORDER DATED 03.11.2021 IN IA NO.1 OF 2021)S: ``` ``` 1ICICI LOMBARD GENERAL INSURANCE CO. LTD. REPRESENTED BY ITS DIVISIONAL MANAGER, 6/255/C, 2ND FLOOR, CITY PLAZA, YMCA CROSS ROAD, KOZHIKODE - 673 001. 2LINEESH, AGED 41 YEARS S/O. MADHAVI AMMA, ALOKANDY HOUSE, MODAKKALLUR P. O., ATHOLI, KOZHIKODE - 673321. 3PRABEESH K. P. AGED 25 YEARS S/O. OF GOVINDAN P., KANHIRATHUM POYIL HOUSE, PODUVACHERY P. O., KANNUR - 670 021. 4THE MANAGING DIRECTOR , AUTOMOTIVE MARKETING PRIVATE LTD., 39/15-A, KANNUR ROAD, PAVANGADU, KOZHIKODE - 673001. 5THE ORIENTAL INSURANCE CO. LTD. REPRESENTED BY ITS DIVISIONAL MANAGER, DIVISIONAL OFFICE, PRAMOD BUILDINGS CHEROOTY ROAD, KOZHIKODE – 673001. ADV.R.B.RAMANAND-R1 ADV.V.KRISHNA MEMON-R5 ADV.LATHA SUSAN CHERIAN-R6 ``` ``` THIS CROSS OBJECTION/CROSS APPEAL HAVING COME UP FOR ``` ``` ADMISSION ON 13.11.2023, ALONG WITH MACA.202/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` `MACA NO. 202 OF 2012 & CO NO. 7 OF 2022` 3 ## ZIYAD RAHMAN, A.A, J ## M.A.C.A No. 202 of 2012 & C.O.No.7 of 2022 ## Dated this the 13rd day of November, 2023 ## JUDGMENT This appeal is filed by the third respondent in OP(MV)No.606/2008 on the files of the MACT, Kozhikode. 2. The said claim petition was submitted by the first respondent herein, seeking compensation for the injuries sustained in a motor accident that occurred on 18.01.2008. According to him, the accident occurred in the manner as follows: At the relevant time, the 1[st] respondent/claimant was riding his motorcycle bearing Registration No. KL-18-4477 from his house to Perambra, and when he reached the road in front of shop ‘Steel India’ at Kaithakkal, he stopped the said vehicle and was about to get down from the motorcycle. At that point of time, a bus bearing registration No.KL-11-P-5540 came from behind and hit behind a tempo van bearing Registration No.KL-4-N-6912 parked behind the motorcycle of the claimant. Thereupon, the tempo van hit the motorcycle, thereby causing severe injuries to him. The second respondent herein was the driver, the third respondent was the owner, and the appellant herein was the insurer of the said bus. Respondents 4 to 6 were the owner, driver and insurer of the said `MACA NO. 202 OF 2012 & CO NO. 7 OF 2022` 4 van, respectively. According to the claimant, consequent to the injuries, he sustained permanent disablement, which was certified as 70% by the Medical Board. He was aged 55 years, and was a porter by profession with a monthly income of Rs.6000/-. 3. The appellant filed a written statement admitting the coverage of the policy but disputing the liability on various grounds. Subsequently, the appellant also filed an application, directing the third respondent herein, the owner of the bus, to produce the permit of the said vehicle, but it was not produced. 4. The evidence in this case consists of Exts.A1 to A8 from the side of the first respondent, and the disability certificate was marked as Ext.C1. The claim petition was submitted in such circumstances by the first respondent herein. 5. After the trial, the Tribunal arrived at the conclusion that the accident occurred due to the negligence on the part of the driver of the bus and being the insurer of the said vehicle, the appellant herein was held liable to pay the compensation. The quantum of compensation was fixed as Rs.3,94,672/-, and the appellant herein was directed to deposit the said amount along with interest @ 7% per annum with a cost of Rs.2500/-. This appeal was submitted by the appellant in such circumstances, challenging the award passed against them by the Tribunal. In the appeal, the `MACA NO. 202 OF 2012 & CO NO. 7 OF 2022` 5 first respondent filed a cross-objection seeking enhancement. 6. Heard Adv.Sri. K.B. Ramanand, the learned counsel appearing for the appellant, Adv.Sri.Jacob Abraham, the learned counsel appearing for the first respondent, Adv.Latha Susan Cherian, the learned counsel appearing for the sixth respondent and Adv.V.Krishna Menon, the learned counsel appearing for the fifth respondent. 7. In the appeal submitted by the appellant/Insurance Company, the main contention raised is with regard to the lack of permit for the said vehicle. However, it was pointed out that the tribunal did not frame any issue in relation to the same, and therefore, it was not decided. However, on going through the written statement submitted by the appellant before the tribunal, it can be seen that no such contentions have been raised by the appellant therein. In the absence of any such contention in the written statement, the Tribunal cannot be find fault with for not framing such an issue. Of course, the learned counsel for the appellant would indeed point out that they filed an interlocutory application directing the first petitioner to produce the permit for the said vehicle. Since no corresponding pleadings raised, I am of the view that the filing of the application has lost its relevance. Therefore, I do not find any justifiable reason to entertain the `MACA NO. 202 OF 2012 & CO NO. 7 OF 2022` 6 contention of the appellant, which was not supported by the pleadings in this regard. Thus, I do not find any merit in the contentions raised by the appellant- Insurance Company. 8. In the cross-objection, the first respondent/claimant seeks enhancement of compensation. The learned counsel for the appellant challenged the maintainability of the cross objection by pointing out that the appeal was filed by raising contentions regarding the violation of policy conditions. Therefore, the cross objection seeking enhancement of compensation at the instance of the claimant was not maintainable at all. In response to the same, the learned counsel for the first respondent/cross objector contended that the contentions raised by the learned counsel for the appellant are covered against the appellant, as per the decision rendered by the Hon’ble Supreme Court in **Urmila Devi v. National Insurance Co. Ltd., (2020) 11 SCC 316.** After considering the observations made by the Hon’ble Supreme Court, I am of the view that the contention raised by the learned counsel for the appellant cannot be entertained. As rightly pointed out by the learned counsel for the first respondent, the issue is specifically covered against the appellant, as per the decision referred to above and therefore, I find that the objection raised by the appellant as to the maintainability of cross objection is only to be `MACA NO. 202 OF 2012 & CO NO. 7 OF 2022` 7 dismissed, and it is ordered accordingly. 9. Now, when moving on to the quantum of compensation, the main contentions raised by the first respondent are on two grounds. As far as the compensation for disability is concerned, firstly, it was pointed out that an amount of Rs.6000/- was claimed as monthly income, but the Tribunal took the same as only Rs.3000/-, which was inadequate. The next aspect is that as a consequence of the injuries sustained, the first respondent had suffered a disability of 70%, as certified by the Medical Board, in view of the amputation below the knee. It was pointed out that the first respondent/claimant was working as a porter, and consequent to his physical disability, he was unable to pursue his avocation. It was further contended that he was aged 55 years at the time of the accident and it was not possible to find out any employment at that stage. Therefore, this is a case in which 100% disability should have been taken, contended the claimant. 10. I have carefully gone through the records. The materials produced before this court would undoubtedly justify the contentions raised by the claimant with regard to the functional disability of the claimant. It is an undisputed fact that the claimant was working as a porter, which requires physical exertion. The amputation below the knee would prevent him from continuing the `MACA NO. 202 OF 2012 & CO NO. 7 OF 2022` 8 said job. It is to be noted that, in several decisions, the Hon’ble Supreme Court has taken the functional disability of persons engaged in manual labour or other employment requiring physical escertion as 100%. Therefore, I am of the view that, considering the facts and circumstances of the case, the functional disability in this case can be taken as 100%, and the compensation can be calculated accordingly. 11. When moving on to the question of monthly income, it is seen that even though Rs.6000/- was claimed, the tribunal took it as Rs.3000/-. Even as per the method of computation of monthly income evolved from the principles laid down in **Ramachandrappa V. Manager, Royal Sundaram Alliance Insurance Co. Ltd [(2011) 13 SCC 236] and Syed Sadiq V. Divisional Manager, United India Insurance Company** **[(2014) 2 SCC 735],** monthly income of an employee, even in the absence of any evidence can be taken as Rs.4500/- in respect of an accident occurred in the year 2004. To determine the compensation for the subsequent years, the usual method adopted is to add Rs.500/- per year. In this case, the accident occurred in the year 2008, and therefore, the monthly income of Rs.6000/- as claimed by the appellant/first respondent herein is a reasonable amount. Thus, the said monthly income is accepted. `MACA NO. 202 OF 2012 & CO NO. 7 OF 2022` 9 12. Another aspect to be noticed is that, considering the fact that the claimant had sustained severe injuries resulting in very high percentage of physical disability and consequent functional disability, the future prospects ought to have been taken into consideration. Since the claimant was 55 years old at the time of the accident, 10% of the same can be taken for the said purpose. While reassessing the compensation with the above revised criteria, the amount would come to Rs.8,71,200/- [(6000 + 10%) X 12 X 11]. The amount already awarded by the Tribunal under this head is Rs.2,77,200/- and therefore the additional amount would come to **Rs.5,94,000/-** 13. Consequent to the revision of monthly income, the claimant would be entitled to additional compensation under the head of loss of earnings. It is to be noted that the tribunal has awarded compensation under this head for a period of three months. Considering the fact that the claimant has suffered the disability consequent to the amputation below the knee, he certainly deserved compensation under this head for a longer period, and the reasonable period, in this case, appears to be six months. Thus, the additional compensation under this head would come to **Rs.27,000/-** [(6000 X 6) – 9000]. 14. The amount awarded by the tribunal for pain and `MACA NO. 202 OF 2012 & CO NO. 7 OF 2022` 10 suffering, is Rs.15000/-. Considering the serious nature of the injuries consequent to the accident, I deem it appropriate to grant a further sum of **Rs.15,000/-** under this head. Similarly, no amount is seen awarded towards the loss of amenities. As observed above, this is a case of amputation, and certainly, he has to be awarded a reasonable amount under this head, as he has to live with that disability. In the facts and circumstances of the case, I deem it appropriate to grant an amount of Rs.30,000/- under this head. Thus, the additional compensation receivable by the claimant is Rs.6,66,000/- (5,94,000 + 27,000 + 15000 + 30000). 15. In such circumstances, the appeal submitted by the appellant is dismissed. However, the cross objection submitted by the first respondent/claimant is allowed by granting an additional compensation of Rs.6,66,000/- (Rupees six lakhs and sixty six thousand only), and the appellant is directed to deposit the said amount along with interest at the rate as ordered by the Tribunal, with proportionate costs, within a period of three months from the date of receipt of a copy of this judgment. sd/- ZIYAD RAHMAN, A.A, JUDGE R.AV