Moosa v. Rajan, Sunil Kumar and United India Insurance Company Ltd.

# _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 24[TH] DAY OF SEPTEMBER 2021 / 2ND ASWINA, 1943_ ## _MACA NO. 2767 OF 2015_ _AGAINST THE ORDER/JUDGMENT IN OPMV 113/2012 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , MANJERI, MALAPPURAM_ ## _APPELLANT/S:_ _MOOSA, AGED 70 YEARS, S/O.HASSAN, KADAMKALLY HOUSE, MARATTUMPPADI, KODASERI, PANDIKKADU, ERNAD TALUK, PANDIKKAD AMSOM, KODASSERI DESOM, MALAPPURAM DISTRICT, PIN 680 721._ _BY ADVS. SRI.K.M.SATHYANATHA MENON SMT.ANJANA KANNATH SMT.KAVERY S THAMPI SRI.A.SANTHOSHKUMAR_ ## _RESPONDENT/S:_ _1 RAJAN, S/O.BHASKARAN, MAYYAVIL KIZHAKKE CHARUVIL HOUSE, AKAMPADAM, KORANKODU, IDIVANNA PO, CHALIYAR, MALAPPURAM DISTRICT, PIN 679 329. 2 SUNIL KUMAR, S/O.BHASKARAN, MAYYAVIL KIZHAKKE CHARUVIL HOUSE, AKAMPADAM, KORANKODU, IDIVANNA PO, CHALIYAR, MALAPPURAM DISTRICT, PIN 679 329. 3 UNITED INDIA INSURANCE COMPANY LTD., HOSPITAL ROAD, CHETTIANGADI, NILAMBUR P.O., NILAMBUR AMSOM DESOM, MALAPPURAM DISTRICT PIN 679 329._ ## _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION_ _ON 24.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ M.A.C.A.No.2767/2015 2 ## **JUDGMENT** The petitioner in O.P.(MV).No.113 of 2012 on the files of the Motor Accidents Claims Tribunal, Manjeri is the appellant herein. Aforesaid claim petition was filed by him seeking compensation for the injuries sustained in a motor accident occurred on 04.05.2011. The accident occurred when a motor cycle ridden by the 1[st] respondent owned by the 2[nd] respondent and insured with the 3[rd] respondent hit him. According to him he was engaged in distribution of curry powder to the shops and was aged 56 years as on the date of accident. The monthly income claimed was Rs.10,000/-. The total compensation claimed was Rs.1,50,000/-. 2. The 1[st] respondent filed a written statement disputing the averments made in the claim petition. He disputes the negligence attributed in the claim petition and contends that the accident was occurred due to the negligence of the appellant. The 3[rd] respondent filed a written statement admitting the coverage of policy in respect of the vehicle, but raised a contention that the M.A.C.A.No.2767/2015 3 rider of the motor cycle was not having valid driving license as on the date of accident and hence there was violation of the policy conditions. Hence, they sought for exoneration from the liability. 3. The evidence in this case consists of Exts.A1 to A5 from the side of the appellant and Ext.B1 and B2 from the side of the respondents. The disability certificate, wherein the percentage of disability of the appellant was certified as 8%, was produced and marked as Ext.X1. After the trial, the Tribunal passed the award allowing a total compensation of Rs.1,38,900/and the 3[rd] respondent insurance company was directed to deposit the said amount along with interest at the rate of 9% per annum from the date of petition. It was also found that the 1[st] respondent was riding the motor cycle without a valid driving license and hence the insurance company was granted right to recover the compensation from the 2[nd] respondent/owner of the motor cycle after satisfying the award. 3. This appeal is filed by the appellant/petitioner seeking enhancement of compensation. M.A.C.A.No.2767/2015 4 4. Heard both sides. 5. The learned counsel for the appellant contends that the quantum of compensation awarded by the Tribunal is extremely low. He submits that the monthly income fixed by the Tribunal is only Rs.5,000/- against the claim of Rs.10,000/-. According to him Rs.5,000/- is very low, while taking note of the fact that the accident occurred in the year 2011. It is true that the appellant has not produced any documents substantiating the monthly income. In this regard it is to be noted that in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd [(2011) 13 SCC 236]** , the Honourable Supreme Court was pleased to fix the monthly income of a coolie as Rs.4,500/- in respect of an accident occurred in the year 2004. In **Syed Sadiq v. Divisional Manager, United India Insurance Company [(2014) 2 SCC 735]** the Honourable Supreme Court was pleased to take Rs.6,500/- as the monthly income of a vegetable vendor in respect of an accident in the year 2008. Going by the principles laid down by the Honourable Supreme M.A.C.A.No.2767/2015 5 Court in the said judgments, I am of the view that even in the absence of any evidence as to the income and avocation of the appellant, the amount of Rs.5,000/- fixed by the Tribunal is very low and requires reconsideration. In the facts and circumstances of the case, I am of the view that an amount of Rs.8,000/- would be a reasonable amount as the accident is of the year 2011 and it is fixed accordingly. I do not find any reason to interfere with the other criteria adopted by the Tribunal for assessing the compensation for permanent disability. While reworking the compensation under this head, the amount would come to Rs.69,120/-. The Tribunal has already awarded Rs.43,200/-. Thus the appellant is entitled for a further sum of Rs.25,920/-. 6. Another head which requires reconsideration is pain and suffering, as the amount awarded is Rs.15,000/-. Considering the nature of injuries and the date of accident, I am of the view that a further sum of Rs.15,000/- has to be granted to the appellant. It was pointed out by the learned counsel for the appellant that no amount is granted under the head of loss M.A.C.A.No.2767/2015 6 of amenities despite the fact that he sustained permanent disablement owing to the injuries. It is true that in the claim petition no amount is seen claimed under this head. However, I am of the view that, as the adjudication of an application under Section 166 is to ensure just compensation to the victim of a motor accident, the appellant has to be granted some amount under this head even in the absence of any claim to that effect. This is particularly because the compensation for loss of amenities is one of the basic ingredients for determining the compensation in respect of the injuries sustained by the victim of a motor accident. In the facts and circumstances of the case, I am of the view that an amount of Rs.25,000/- is a reasonable compensation under this head. 7. Consequent to the revision of monthly income, the appellant shall be entitled for an additional amount under the head of loss of earning. It is seen that the Tribunal has awarded an amount of Rs.30,000/- under this head, which was calculated at the rate of Rs.5,000/- for a period of six months. As I have M.A.C.A.No.2767/2015 7 revised the monthly income as Rs.8,000/-, the appellant is entitled for a further sum of Rs.18,000/- under this head. At this juncture, the learned counsel for the appellant pointed out that he has produced a treatment certificate and medical bills along with I.A.No.1 of 2019. He is placing reliance upon Annexure-A treatment certificate produced, which is one among the said documents, wherein it is certified by the doctor that he requires to undergo certain medical procedures in connection with the implant removal. However, it is noticed that this treatment certificate is of the year 2019, whereas the accident occurred in the year 2011. In the absence of any evidence indicating that the treatment/medical procedures as recommended in Annexure-A is in relation to the injuries sustained in this accident, same cannot be entertained even otherwise at this belated stage. I do not think that it is proper to accept such an evidence at this stage. In such circumstances, I am not inclined to accept the said documents. As mentioned above, the appellant is found entitled for a M.A.C.A.No.2767/2015 8 total amount of Rs.83,920/- [Rupees eighty three thousand nine hundred and twenty only] in addition to the amount already awarded by the Tribunal. The 3[rd] respondent insurance company is directed to deposit the said amount along with interest at the rate of 9% per annum and proportionate cost within a period of three months from the date of receipt of a copy of this judgment. It is further clarified that the 3[rd] respondent insurance company shall be entitled to realise this additional amount along with interest from the 2[nd] respondent owner of the vehicle. Sd/- **ZIYAD RAHMAN A.A. JUDGE** DG/29.9.21