MACA Nos. 2709/2012 and 2177/2013

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN THURSDAY, THE 25[TH] DAY OF AUGUST 2022 / 3RD BHADRA, 1944 MACA NO. 2709 OF 2012** **AGAINST THE AWARD DATED 12.10.2012 IN O.P(MV) No.1264/2007 OF MOTOR ACCIDENTs CLAIMS TRIBUNAL,** ## **IRINJALAKUDA** ## **APPELLANT/PETITIONER:** JOSHY, S/O. KUMARAN, ANKARATH HOUSE, VELLANCHIRA.P.O., ALOOR, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADVS. SRI.P.V.BABY SRI.A.N.SANTHOSH ## **RESPONDENTS/RESPONDENTS:** 1 THANKAPPAN K.A., MANAGING PARTNER, SREE ANDAVOOR CLAY WORKS, THURUTHIPARAMBU, KOOTTATTU.P.O., THRISSUR-680 682. 2 JOHNSON, S/O. ANTONY, ARIKKADAN HOUSE, ALOOR.P.O., THRISSUR DISTRICT-680 683. 3 THE NATIONAL INSURANCE CO. LTD. IRINJALAKKUDA-680 121. BY ADV. SRI.A.A.MOHAMMED NAZIR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING FINALLY HEARD ON 25.08.2022, ALONG WITH MACA.2177/2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **M.A.C.A Nos.2709/2012 and 2177/2013** 2 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **THURSDAY, THE 25[TH] DAY OF AUGUST 2022 / 3RD BHADRA, 1944 MACA NO. 2177 OF 2013** **AGAINST THE AWARD DATED 12.10.2012 IN O.P(MV) No.1264/2007 OF MOTOR ACCIDENTs CLAIMS TRIBUNAL,** ## **IRINJALAKUDA** ## **APPELLANT/RESPONDENT NO.1:** *1 THANKAPPAN K.A. *(DIED, LRs IMPLEADED) MANAGING PARTNER, SREE ANDAVAR CLAY WORKS, THURUTHIPARAMBU, KOTTATT.P.O., THRISSUR DISTRICT. *ADDL. APPELLANTS IMPLEADED *ADDL.2 RENUKA, W/O.LATE THANKAPPAN K.A, AGED 64 YEARS, KOLLAMPARAMBIL HOUSE, THURUTHIPARAMBU, ANNALLUR P.O, THRISSUR DISTRICT-680 731. *ADDL.3 SIVADAS K.T, S/O.LATE THANKAPPAN K.A, AGED 44 YEARS, KOLLAMPARAMBIL HOUSE, THURUTHIPARAMBU, ANNALLUR P.O, THRISSUR DISTRICT-680 731. *ADDL.4 HARIDAS K.T, S/O.LATE THANKAPPAN K.A, AGED 42 YEARS, KOLLAMPARAMBIL HOUSE, THURUTHIPARAMBU, ANNALLUR P.O, THRISSUR DISTRICT-680 731. *ADDL.5 DIVYA DAS K.T., S/O.LATE THANKAPPAN K.A., AGED 39 YEARS, KOLLAMPARAMBIL HOUSE, THURUTHIPARAMBU, ANNALLUR P.O, THRISSUR DISTRICT-680 731. *LRs of deceased sole appellant is impleaded as additional appellants 2 to 5, as per order dated 15.07.2022 in I.A.No.1/2022 in M.A.C.A. No.2177/2013. BY ADV. SMT.K.V.BHADRA KUMARI 3 ## **M.A.C.A Nos.2709/2012 and 2177/2013** ## **RESPONDENTS/PETITIONER & RESPONDENTS Nos.2 & 3:** 1 JOSHY, AGED 32 YEARS, S/O. KUMARAN, ANKARATH HOUSE, VELLANCHIRA DESOM & P.O., ALOOR VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT-680 693. 2 JOHNSON, S/O. ANTHONY, ARIKKADAN HOUSE, THURUTHIPARAMBU, ALOOR.P.O., THRISSUR DISTRICT-680 683. 3 THE NATIONAL INSURANCE COMPANY LTD. IRINJALAKUDA-680 125. BY ADVS. SRI.A.N.SANTHOSH SRI.P.SAILESH SREEKUMAR SRI.A.A.MOHAMMED NAZIR SRI.P.SAILESH SREEKUMAR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING FINALLY HEARD ON 25.08.2022, ALONG WITH MACA.2709/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 4 ## **M.A.C.A Nos.2709/2012 and 2177/2013** ## **COMMON JUDGMENT** Both appeals arise out of award dated 12.10.2012 in O.P.(M.V) No.1264/2007 on the file of Motor Accidents Claims Tribunal, Irinjalakuda. **==> picture [380 x 13] intentionally omitted <==** the instance of the original 1[st] respondent in the above case, challenging recovery right granted in favor of insurer. Original claimant has filed M.A.C.A.No.2709/2012. **==> picture [381 x 13] intentionally omitted <==** appeal as claimant, insurer and insured for easy reference. 4. Brief facts of the case: According to the claimants, on 12.07.2007 at about 9:30 p.m., while the appellant was riding a motorcycle bearing registration No.KL- 8/AA-2479 through Chalakudy-Kombidy public road and when the motorcycle reached at Vellanchira, a van bearing registration No.KL-4B-1123 driven ## **M.A.C.A Nos.2709/2012 and 2177/2013** **==> picture [7 x 9] intentionally omitted <==** by R2, in a rash and negligent manner came from the opposite direction dashed against the bike. Thereby the appellant sustained severe injuries. 1[st] respondent is the owner and 3[rd] respondent is the insurer of the van. On the above facts, an application under Section 166 of the Motor Vehicles act was preferred by the claimant before the M.A.C.T, Irinjalakuda claiming compensation to the tune of Rs.2,00,000/- from respondents 1 to 3. 5. 1[st] and 2[nd ] respondents were declared exparte by the Tribunal. 6. R3 filed written statement. The driving license of the 2[nd] respondent was disputed while admitting policy to the van bearing registration No.KL-4B-1123 and disputing claim of compensation. Thereafter, additional written statement also filed contending that the vehicle had no valid Fitness Certificate and permit at the time of accident and, therefore, policy conditions were violated and the Company ## **M.A.C.A Nos.2709/2012 and 2177/2013** ## 6 in turn had no liability. 7. Coming to M.A.C.A.No.751/2014, recovery right granted in favour of the appellant/1[st] respondent holding that the vehicle had no Fitness Certificate and Permit at the time of accident, is under challenge. 8. The Tribunal adjudicated the matter after examining PWs.1 and 2 and marking Exts.A1 to A10 on the part of the appellant. No evidence let in on the side of the respondents. 9. The Tribunal appraised the evidence and finally granted Rs.1,18,642/- as compensation along with 7.5% interest. 10. It is submitted by the learned counsel for the claimant that though the claimant asserted his income at Rs.6,000/- per month, who was aged 32 years at the time of accident and was doing welding work, the Tribunal fixed the monthly income at Rs.2,500/-. He pressed for fixing the monthly income as claimed, since the same is the amount otherwise entitled ## **M.A.C.A Nos.2709/2012 and 2177/2013** 7 following the ratio in _**Ramachandrappa v.**_ _**Manager, Royal Sundaram Alliance Insurance Company Ltd.**_ : **(2011) 13 SCC 236** . Fixation of monthly income is not in dispute since _**Ramachandrappa's**_ case (supra) also provides Rs.6,000/- as the monthly income in the case involving accident of the year 2007. Further, it is submitted that only one month's 'loss of earnings' was granted, in a case involving multiple fracture and prolonged treatment. 11. The next challenge raised by the learned counsel for the claimant is inadequacy of compensation on the ground that disability also to be worked out at the rate of Rs.6,000/- per month and also the amount granted under the head 'pain and sufferings' is insufficient and no amount granted under the head 'loss of amenities'. 12. 15.14% disability was accepted by the Tribunal and the same is not in dispute. ## **M.A.C.A Nos.2709/2012 and 2177/2013** 8 Multiplier '16' applied by the Tribunal is also not in dispute. Therefore, the 'loss of disability income' requires re-calculation. Thus, 6000x12x16x15.14% = 1,74,412.80/- Out of which, Rs.72,672/- was granted by the Tribunal. Thus, the appellant is entitled to the balance of **Rs.1,01,741/-** more under the head of 'loss of disability income'. 13. In this matter, the appellant sustained Open fracture lateral tibial condyle (R), Fracture fibula right, Lacerated wound (R) knee, Fracture ulna right, Mallet finger deformity on (R) mid finger and he underwent treatment as inpatient twice. In such circumstances, 'loss of earnings' granted for one month is on lower side and the same requires increase at least for a period of five months and the same would come to Rs.30,000/(6,000x5). Out of which Rs.2,500/- was granted by the Tribunal. Therefore, **Rs.27,500/-** more is ## **M.A.C.A Nos.2709/2012 and 2177/2013** 9 granted under the head 'loss of earnings'. 14. It is noticed that though the appellant sustained multiple fractures, the Tribunal granted Rs.12,000/- alone under the head 'pain and sufferings'. Therefore, I am inclined to grant **Rs.8,000/-** more under the head 'pain and sufferings'. Coming to 'loss of amenities' also, no amount was granted by the Tribunal and, therefore, the learned counsel for the appellant pressed for granting compensation under the head 'loss of amenities' also. Considering the multiple fractures and treatment, I am inclined to grant **Rs.10,000/-** under the head 'loss of amenities'. 15. In the result, M.A.C.A.No.2709/2012 is allowed. It is ordered that the appellant is entitled to get Rs.2,65,883/as total compensation, out of which Rs.1,18,642/- was granted by the Tribunal and the balance amount of **Rs.1,47,241/-** (Rupees One Lakh Forty Seven Thousand Two Hundred and Forty One Only) is ## **M.A.C.A Nos.2709/2012 and 2177/2013** 10 granted as enhanced compensation with the same rate of interest awarded by the Tribunal, payable by the 3[rd] respondent from the date of petition till the date of deposit or realisation. **==> picture [380 x 14] intentionally omitted <==** deposit the same in the name of the appellant within two months. On deposit, the appellant is entitled to release the same. **==> picture [380 x 14] intentionally omitted <==** insured/owner of the vehicle challenged the recovery right on the assertion that there was valid Permit and Fitness Certificate at the time of accident and the appellant failed to produce the same before the Tribunal. The learned counsel for the appellant would submit that even though the insured attempted to get certified copies of the same under the RTI Act, the said attempt failed, as it was informed that the said record is not available. She would submit that the vehicle was having valid ## **M.A.C.A Nos.2709/2012 and 2177/2013** ## 11 permit and the appellant is ready to produce the same. 18. It is relevant to note that though the appeals were filed in the year 2012, even the Permit submitted available on the hands of the insured, not produced so far. In this matter, as per order in I.A. No.194/2011 filed by the insurer, the Tribunal directed the 1[st] respondent to produce permit and Fitness Certificate and on failure to do so, the Tribunal taken adverse inference against the 1[st] respondent. Thus, it appears that the insurer had taken possible steps to prove that the vehicle was not having valid Fitness Certificate or permit at the time of accident and the Tribunal took adverse inference also. Since, it is submitted by the learned counsel for the insured that there was permit and the same can be produced, then also absence of Fitness Certificate alone by itself is violation of policy conditions which would ## **M.A.C.A Nos.2709/2012 and 2177/2013** 12 entitle the insurer to get recovery right. Therefore, recovery right granted by the Tribunal for want of Fitness Certificate is liable to be confirmed. Similarly, recovery right in favour of the insured shall be made available to the enhanced compensation also, on deposit of the entire compensation by the insurer in the name of the appellant. 19. It is specifically ordered that the Insurance Company is allowed to realise the entire award amount including the enhanced compensation along with interest thereof from the insured, immediately on deposit of the same before the Tribunal. In the result, M.A.C.A.No.2177/2013 stands dismissed and M.A.C.A.No.2709/2012 is allowed as indicated above. Sd/- ## **A.BADHARUDEEN, JUDGE.** ww