MACA Nos. 957 and 1207 of 2012, High Court of Kerala at Ernakulam

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN WEDNESDAY, THE 10[TH] DAY OF AUGUST 2022 / 19TH SRAVANA, 1944** **MACA NO. 957 OF 2012** **AGAINST THE AWARD DATED 13.01.2012 IN OP(MV)NO.1194/2009 OF** **MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA** ## **APPELLANT/3RD RESPONDENT :** **THE ORIENTAL INSURANCE CO.LTD., METRO PALACE, GROUND FLOOR, OPP.NORTH RAILWAY STATION, ERNAKULAM, REPRESENTED BY ITS AUTHORISED OFFICER.** **BY ADV SRI.VPK.PANICKER** ## **RESPONDENTS/RESPONDENTS 1 & 2 AND PETITIONER :** - **1 JAMESKUTTY VARGHESE, S/O.N.C.VARGHESE, NADAYIL VEEDU, MANJALARUVI BHAGOM, KANNIMALA.P.O, ERUMELY VADAKKU VILLAGE-686509.** - **2 VARGHESE ANTONY, S/O.ANTONY, ANCHANAMATTOM HOUSE, NARAKAPPUZHA.P.O, KOKKOYAR-686509.** **3 BINOJ, S/O.KUNJU, KEENTHANANICKAL HOUSE, MANJALARUVI BHAGOM, KANNIMALA.P.O, ERUMELY VADAKKU VILLAGE-686509.** **BY ADVS. SRI.LIJI.J.VADAKEDOM SRI.PRAMOJ ABRAHAM SRI.SHIJU VARGHEESE** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10.08.2022 ALONG WITH MACA NO.1207/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA Nos.957 and 1207 of 2012 ..2.. # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **WEDNESDAY, THE 10[TH] DAY OF AUGUST 2022 / 19TH SRAVANA,** **1944** **MACA NO. 1207 OF 2012** **AGAINST THE AWARD DATED 13.01.2012 IN OP(MV)NO.1194/2009** **OF MOTOR ACCIDENT CLAIMS TRIBUNAL, PALA** ## **APPELLANT/PETITIONER :** **BINOJ, S/O.K.KUNJU, KEENTHAMANICKAL HOUSE, MANJALARUVI, KANNIMALA BHAGOM, ERUMELY NORTH VILLAGE.** **BY ADV SRI.SHIJU VARGHEESE** ## **RESPONDENTS/RESPONDENTS :** **1 JAMES KUTTY VARGHESE, S/O.N.C.VARGHESE, NADAYIL VEEDU, MANJALARUVI BHAGOM, KANNIMALA PO, ERUMELY VADAKKU VILLAGE-686509. 2 VARGHESE ANTONY S/O.ANTONY, ANCHANAMATTAM, NARAKAPPUZHA PO, KOKKOYAR-686506.** MACA Nos.957 and 1207 of 2012 ..3.. - **3 THE MANAGER,** **ORIENTAL INSURANCE CO.LTD., CHEERAMVELIL BUILDINGS, N.H.220, KANJIRAPPALLY P.O.-686507.** **BY ADVS SRI.VPK.PANICKER SRI.LIJI.J.VADAKEDOM** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 10.08.2022 ALONG WITH MACA NO.957/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA Nos.957 and 1207 of 2012 **==> picture [46 x 8] intentionally omitted <==** ## **MACA Nos.957 and 1207 of 2012 -----------------------------------------------** ## **COMMON JUDGMENT** MACA No.1207 of 2012 is at the instance of the petitioner in O.P.(MV)No.1194 of 2009 on the file of the Motor Accidents Claims Tribunal, Pala canvassing increase in the compensation granted by the Tribunal, as per award dated 13.01.2012, in the above case, where respondents herein are the respondents, before the Tribunal. 2. The third respondent has preferred MACA No.957 of 2012 arraying other parties as respondents, canvassing recovery right on the assertion that there was no driving licence to the driver of the offending vehicle at the time of accident. MACA Nos.957 and 1207 of 2012 **==> picture [46 x 8] intentionally omitted <==** 3. Heard the learned counsel for the respective appellants and the learned counsel appearing for the second respondent. 4. The parties will be referred herein after as petitioner, insured(2[nd] respondent) and insurer(3rd respondent). 5. The petitioner herein, who met with an accident on 26.01.2009 at about 10.30 p.m., while he was walking through the side of the road and when he was hit down by a motorcycle bearing Registration No.KL 6/C 2298 driven by the first respondent in a rash and negligent manner, approached the Tribunal and filed claim petition under Section 166 of the Motor Vehicles Act and pressed for Rs.3,00,000/- as compensation. 6. The third respondent filed written MACA Nos.957 and 1207 of 2012 **==> picture [46 x 8] intentionally omitted <==** statement disputing the accident and negligence, while admitting policy. Quantum also was disputed. At the same time, the third respondent raised a specific contention before the Tribunal that the first respondent, who had ridden the motorcycle bearing Registration No.KL 6/C 2298, did not possess a valid driving licence at the time of accident and therefore, the company is not liable to pay the amount on the ground of violation of policy conditions. 7. The Tribunal ventured the matter relying on Exts.A1 to A11 marked on the side of the petitioner and Ext.B1 marked on the side of the third respondent. Ext.X1, the disability certificate also was marked. Thereafter, the Tribunal granted Rs.1,26,650/- along with 7.5% interest as against the claim of Rs.3,00,000/-. MACA Nos.957 and 1207 of 2012 **==> picture [46 x 8] intentionally omitted <==** 8. In this matter, the negligence found by the Tribunal is not in dispute. Therefore, I am inclined to address the issue of inadequacy in the matter of compensation first. It is submitted by the learned counsel for the appellant that the appellant claimed his income at Rs.8,000/-being a rubber tapper aged 33 years under various employees. However, the Tribunal accepted Rs.4,000/- as the monthly income. He pressed for refixing the monthly income following the ratio in [(2011) 13 SCC 236], **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** This submission is not opposed. Therefore, Rs.7,000/- is fixed as the monthly income. The learned counsel pressed for increasing the percentage of disability accepted by the Tribunal as 10% as against 24% assessed by the Medical MACA Nos.957 and 1207 of 2012 **==> picture [46 x 8] intentionally omitted <==** Board as per Ext.X1. 9. Before addressing the question of disability, I am inclined to refer Ext.A5 wound certificate as well as Ext.A6 discharge card issued from the Medical College Hospital, Kottayam. As per Ext.A5, type III open fracture both bones left leg, lacerated wound above nose, lacerated wound left elbow, left eyelid and right side of scalp were initially diagnosed. On X-ray examination, type III B open comminuted fracture both bones left leg was diagnosed and he was treated for the said infirmities at Medical College Hospital, Kottayam. After discharge, there was review after six weeks and it was observed in Ext.A5 that fracture united without any infirmities. 10. In this matter, as per Ext.X1, Standing Disability Assessment Board certificate, the Medical Board MACA Nos.957 and 1207 of 2012 **==> picture [46 x 8] intentionally omitted <==** assessed the disability at 24% of moderate category, on the finding that there is partial ankylosis left ankle and left knee. 11. The Tribunal was not inclined to accept 24% disability for the reasons that on seeing the petitioner/injured and on perusal of the records and other circumstances, the disability would come to 10% only. 12. In this matter, though Ext.X1 would suggest 24% moderate disability, the same is not in consensus with the treatment records. To be more explicit, treatment records do not show any ankylosis as stated in Ext.X1. Therefore, 24% disability as such cannot be accepted in this case, since the same is on higher side. However, having noticed both bone fracture and treatment thereon, as discussed, 15% disability is taken into MACA Nos.957 and 1207 of 2012 **==> picture [52 x 8] intentionally omitted <==** consideration for re-fixing the disability income. Apart from that, reasonable enhancement can be granted on other heads also. 13. In this matter, the Tribunal granted loss of earnings for a period of three months at the rate of Rs.4,000/- per month. Considering both bone fracture and treatment thereof, I am inclined to grant loss of earnings for a period of four months at the rate of Rs.7,000/-. Thus, loss of earnings is as under; 7,000x4 = Rs.28,000/- Out of which, Rs.12,000/- was granted by the Tribunal.Rs.28,000-12,000= **Rs.16,000/-** more is granted under the head loss of earnings. 14. Coming to the loss of disability income, it is pointed out by the learned counsel for the insurer that MACA Nos.957 and 1207 of 2012 **==> picture [52 x 8] intentionally omitted <==** the multiplier applied by the Tribunal as '17' is incorrect and the proper multiplier is '16' applying the ratio in [2010 (2) KLT 802], **Sarla Verma v. Delhi Transport Corporation** . The submission is correct and the same is not opposed by the other side also. Therefore, the loss of dependency income is re-calculated as under; 7,000x12x16x15%=2,01,600/- Out of which, Rs.81,600/- was granted by the Tribunal. Rs.2,01,600-Rs.81,600= **Rs.1,20,000/-** more is granted under the head loss of dependency income. 15. It is noticed that the Tribunal granted Rs.7,500/- alone under the head pain and sufferings. Considering both bone fractures and the other injuries along with the treatment thereof, **Rs.10,000/-** more is granted towards pain and sufferings and **Rs.10,000/-** MACA Nos.957 and 1207 of 2012 **==> picture [52 x 8] intentionally omitted <==** more is granted towards loss of amenities in excess of Rs.5,000/- granted by the Tribunal under the head loss of amenities. 16. In MACA No.957 of 2012, the insurer raised challenge against non-grant of recovery right based on the finding that there was no charge under Section 3(1) of the Motor Vehicles Act, was filed by the Tribunal. It is pointed out by the learned counsel for the insurer that in Ext.A4 charge itself, it has been stated that a separate charge alleging commission of offence under Section 3(1) of the Motor Vehicles Act was filed against the first respondent, the driver of the motorcycle. Therefore, the Tribunal could not be justified in rejecting recovery right. On perusal of Ext.A4, the submission appears to be correct. Since there is MACA Nos.957 and 1207 of 2012 **==> picture [52 x 8] intentionally omitted <==** reference in Ext.A4 to the effect that charge under Section 3(1) of the Motor Vehicles Act had been filed against the driver, there is no reason to disallow the recovery right, since absence of driving licence is a fundamental breach. Therefore, it is ordered that the insurer is entitled to get recovery of the amount from the second respondent, though it is submitted by the learned counsel for the owner of the vehicle that the owner already sold the vehicle at the time of accident without the support of any remote evidence. In the result, MACA No.1207 of 2012 is allowed. It is ordered that the appellant is entitled to get enhanced compensation to the tune of **Rs.1,56,000/-** (Rupees One lakh Fifty Six Thousand only) at the rate of 7.5% interest granted by the Tribunal excluding the amount already MACA Nos.957 and 1207 of 2012 **==> picture [52 x 8] intentionally omitted <==** granted by the Tribunal from the date of petition till the date of deposit or realisation. The insurance company is directed to deposit the same in the name of the appellant within two months from today and on deposit, the appellant is at liberty to release the same. Similarly, MACA No.957 of 2012 is also allowed. Recovery right is granted in favour of the insurer of the vehicle to recover the entire amount of compensation with accrued interest thereof from the second respondent, the owner(insured), after depositing the amount in the name of the appellant within two months. Sd/- ## **A.BADHARUDEEN, JUDGE** rkj