MACA NO. 321 OF 2012

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE BASANT BALAJI WEDNESDAY, THE 27[TH] DAY OF MARCH 2024 / 7TH CHAITHRA, 1946 ## MACA NO. 321 OF 2012 AGAINST THE AWARD DATED 04.10.2010 IN OPMV NO.939 OF 2003 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PATHANAMTHITTA ## APPELLANTS: - 1 S. GEEVARGHESE S/O.SAMUEL, (DIED) KANNATHIL HOUSE, PARUMALA. - *2 ANNAMMA VARGHESE* W/O. LATE S.GEEVARGHESE, KANNATHIL HOUSE , PARUMALA P.O, THIRUVALLA, PATHANAMTHITTA DISTRICT, PIN-689 626 - *3 REMMITH SAM VARGHESE * S/O LATE GEEVARGHESE KANNATHIL HOUSE , PARUMALA P.O, THIRUVALLA, PATHANAMTHITTA DISTRICT, PIN-689 626 - *4 REMYA SARA VARGESE * D/O LATE S.GEEVARGHESE KANNATHIL HOUSE , PARUMALA P.O, THIRUVALLA, PATHANAMTHITTA DISTRICT, PIN-689 626. - (*ADDITIONAL APPELLANTS 2 TO 4 IMPLEADED AS LEGAL REPRESENTATIVES OF DECEASED APPELLANT AS PER ORDER DATED 02.08.2022 IN IA 1/2022 IN MACA 321/2012) - BY ADVS. SRI.T.K.KOSHY SMT.ANNIE MATHEW KAYAMKULAM SMT.V.V.RISANI ## RESPONDENTS : - 1 OMANAKUTTAN VAZHAVELIL RAJ BHAVAN, PERUNNAI P.O., PANACHICAVU, CHANGANACHERRY-686 102. - 2 THE BRANCH MANAGER NATIONAL INSURANCE CO.LTD., CHANGANACHERRY-686 104. - BY ADVS. T.P.PRADEEP SRI.PMM.NAJEEB KHAN MINIKUMARY M.V. THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 27.03.2024, ALONG WITH RP.93/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: MACA 321/2012 -2- ## JUDGMENT (Dated this the 27[th] March 2022) Appellant Nos.2 to 4 are the legal heirs of the original petitioner who died pending this appeal. The original petition was filed by the first appellant claiming compensation on account of the injuries sustained by him in a motor accident. 2. The first appellant was 49 years old and working was as Junior Assistant in Kerala Electricity Board. On 3.4.2002 at about 5.15 pm while he was walking through the road situated near Post Office junction Changanacherry a goods autorikshaw bearing registration No.KL-4/7715 driven by the first respondent in a rash and negligent manner hit on the right leg of the first appellant and as a result, he sustained serious injuries including comminuted fracture on his right leg. Immediately he was taken to MACA 321/2012 -3- Government hospital Changanacherry and from there to St. Gregorious Hospital, Parumala and treated there as inpatient. He underwent an operation and sustained disability on his right leg as a result of the accident. The accident happened solely due to the rash and negligent driving of the goods autorickshaw by the first respondent. Second respondent is the insurer and the first and second respondents are jointly and severally liable to compensate the petitioner/appellant. 3. The first respondent remained ex-parte and the 2[nd] respondent filed written statement contending that the petition is not maintainable either in law or on facts. The accident was not reported by the first respondent and the driving license of the first respondent was also not produced. It was admitted that the goods autorikshaw MACA 321/2012 -4- involved in the accident stood insured with the second respondent as on the date of accident. It was also contended that the accident happened due to the negligence on the part of the first appellant/claimant himself who tried to cross the road abruptly. At least there was contributory negligence on the part of him. Though a written statement was filed by the second respondent, since he was absent, was set ex-parte. The Tribunal, thereafter, relying on Ext.Nos.A1 to A9 awarded a total compensation Rs.1,34,000/- with interest at the rate of 7.5% from date of petition till realisation from the second respondent. Since there was violation of policy conditions, the 2[nd] respondent Insurance Company was to recover given liberty the amount paid to the petitioner from the first respondent. MACA 321/2012 -5- 4. The first respondent is represented by Adv.T.P Pradeep. The second respondent is represented by Adv.Sri P.M.M. Najeeb Khan. 5. The counsel for the appellants Sri.T.K.Koshy submits that the Tribunal has held that even though there is disability to the extent of 15% being an employee in KSEB having a permanent job, is not entitled for compensation for disability. The counsel argues that the first appellant/claimant, though an employee of KSEB after retirement at the age of 56 years, will be disabled to do any other work which he could do before the accident and therefore disability compensation has to be worked out post retirement. He relied on the judgment of this court reported in Raju Sebastian v. United India Insurance co Ltd. [2021 (6) KLT 136] to contend for the preposition MACA 321/2012 -6- that for loss of dependency pertaining to the post retirement period the probable monthly income can be taken at the rate of 50% of his income as on the date of the accident for the of the purpose computing compensation for probable loss of earning after the date of his retirement. The Tribunal has taken the notional income as Rs.30000/- excluding pension the compensation for post retirement period. 6. It is seen that though a disability certificate was produced, the Doctor who issued the certificate has not treated the first appellant/claimant and it is not by the Medical Board but by a single Doctor. But relying on a decision reported in Kalesh v. Sudheer [2010 (1) KLT 537] the Tribunal after seeing the person fixed his permanent disability as 15%. At the time of accident MACA 321/2012 -7- according to the appellants the first appellant was drawing a salary of Rs.8,000/-. Therefore, taking note of the dictum laid down in Raju Sebastian (supra), the monthly notional income of the first appellant post retirement is taken as Rs.4,000/-. The disability fixed by the Tribunal at 15% is accepted. Since the post retirement period (from 56 to 60) the multiplier to be adopted is 9, the compensation for permanent disability for post retirement period can be calculated as 4,000 x 12 x 9 x 15/100 = Rs.64,800/-. 7. Though the appellants claimed an amount of Rs.50,000/- under the head loss of earning, the Tribunal granted only Rs.15,000/-. When the salary is fixed as Rs.8,000/- per month, the loss of earnings would come to Rs.8,000/- x 3 months = Rs.24,000/-. MACA 321/2012 -8- 8. For pain and suffering, the Tribunal awarded a sum of Rs.25,000/-. It is seen that having seen the petitioner in person, the Tribunal has already fixed the disability as 15%. Taking note of the nature of injuries sustained, such as mal united fracture of both bones (R) leg with shortening, I am of the opinion that an amount of Rs.10,000/- more can be awarded under the head. 9. Towards transportation to hospital, the Tribunal awarded Rs.1,500/- against the claim of Rs.5,000/- which I found to be reasonable. For loss of amenities in life, the Tribunal has awarded reasonable compensation. 10. The counsel for the 1[st] respondent relying on Anneuxre A1 and A2, submitted that since the driver is having a valid license, the liability to pay the amounts as compensation to the claimant only rest on the Insurance MACA 321/2012 -9- Company and the 1[st] respondent-driver has to be exonerated from the payment of amounts. The Tribunal in the impugned judgment had held that since there was violation of policy conditions, the liability is on the owner of the vehicle, and liberty was given to the Insurance Company to recover the same from the owner. As stated above, since the appellant has proved before this Court, that he has valid license and badge as on the date of the accident i.e., 03.04.2002, the finding entered by the Tribunal that there is violation of policy conditions and liberty was given to the Insurance Company to pay the amount and recover the same is set aside, and it is declared that the entire liability is rest on the Insurance Company. MACA 321/2012 -10- ## Accordingly, the following enhancements are made to the award passed by the Tribunal: |Sl.<br>No.|Head of Claim|Amt.<br>Awarded by<br>Tribunal<br>(Rs.)|Amt.<br>Enhanced in<br>appeal (Rs.)| |---|---|---|---| |1|Compensation for<br>permanent disability|36,000|64,800| |2.|Pain and sufferings|25,000|35,000| |3.|Loss of earnings|15,000|24,000| ||Total|76,000|1,23,800| ||Amount enhanced -Rs.1,23,800 – 76,000 = Rs.47,800/-||| In the result, the appeal is allowed and the appellants are entitled to an amount of Rs.47,800/- (Rupees forty seven thousand eight hundred only). The Insurance Company shall pay interest for the enhanced amounts, at the rate of 7.5% from the date of petition. If any amounts have MACA 321/2012 -11- already been paid, the same shall be granted set off. Since the claimants are wife and children, the 2[nd] appellant is entitled to 50% of the total compensation, and the other appellants 3 and 4 at the rate of 25% each. The claimants shall produce the details of the Bank account before the Insurance Company/Tribunal within one month from the date of receipt of a certified copy of this judgment and amount shall be transferred to the Bank account directly through NEFT/RTGS mode, within a period of one month thereafter. If the Bank account is not furnished within the time stipulated, it is made clear that no interest shall run on the enhanced amount after the period stipulated by this Court. It is also made clear that the appellants would not be entitled for interest for the period of delay of 387 days MACA 321/2012 -12- in filing the Appeal, as per order of this Court dated 27.2.2012, on the enhanced compensation. Sd/- BASANT BALAJI JUDGE JS