MUTHUKUTTY @ NOOR MOHAMMED v. SHERIFF, KUMARAN, NATIONAL INSURANCE COMPANY LIMITED

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **WEDNESDAY, THE 3[RD] DAY OF AUGUST 2022 / 12TH SRAVANA, 1944** **MACA NO. 734 OF 2010** **AGAINST THE AWARD DATED 09.02.2009 IN OP(MV) No.389/2004 OF MOTOR ACCIDENT CLAIMS TRIBUNAL , PALAKKAD** ## **APPELLANT/PETITIONER:** MUTHUKUTTY @ NOOR MOHAMMED, S/O.LATE HANEEFA ROWTHER, AGED 48 YEARS,, POOVAKKODE HOUSE, KANNADI (PO), PALAKKAD DIST. BY ADVS. SRI.BINOY VASUDEVAN SMT.P.G.BABITHA ## **RESPONDENTS/RESPONDENTS:** 1 SHERIFF, S/O.KADEEJAUMMA, AGE NOT KNOWN, RESIDING AT 4/862, PELAMEDU HOUSE, KUTHIRAPARA, KUNISSERY (P.O), ALATHUR TALUK,, PALAKKAD DISTRICT. 2 KUMARAN, S/O.VELLA, AGED 48 YEARS, RESIDING AT NAMBILATHODI, VADAKKUMURI, KANNADI (P.O), PALAKKAD DISTRICT. 3 NATIONAL INSURANCE COMPANY LIMITED EAST FORT COMPLEX, FORT MAIDAN, PALAKKAD, THODUPUZHA. BY ADV. SMT.RAJI T.BHASKAR THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING FINALLY HEARD ON 03.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **M.A.C.A No.734 of 2010** 2 ## **JUDGMENT** This is an appeal filed under Section 173 of the Motor Vehicles Act, challenging award dated 09.02.2009 in O.P.(M.V) No.389/2004 on the file of the Motor Accidents Claims Tribunal, Palakkad, at the instance of the petitioner. The respondents before the Tribunal are the respondents herein also. 2. Heard both sides. 3. Brief facts of the case: It is alleged by the appellant that on 06.06.2003 at about 11:00 p.m., while the appellant was travelling in an auto rickshaw bearing registration No.KL-9G-9214, driven by the 2[nd] respondent, the 2[nd] respondent had suddenly applied the brake on seeing a tempo van coming from the opposite direction and thereby the auto rickshaw capsized. The appellant contended that he sustained very 3 ## **M.A.C.A No.734 of 2010** serious injuries and he was treated at Fort hospital, Palakkad as inpatient therein till 11.06.2003. Thereafter he was admitted in Balaji Hospital, Palakkad and was inpatient therein till 30.06.2003. 1[st] respondent is the owner and 3[rd] respondent is the insurer of the vehicle. On the above facts, an application under Section 166 of the Motor Vehicles act was preferred by the appellant before the M.A.C.T, Palakkad claiming compensation to the tune of Rs.1,83,500/- from respondents 1 to 3. 4. The 1[st] and 2[nd] respondents filed joint written statement disputing the negligence as well as quantum of compensation. 5. The 3[rd] respondent Insurance Company filed written statement and admitted policy while disputing the liability. The 3[rd] respondent filed additional written statement. According to the Insurance Company since the 2[nd] respondent had no driving license at the time of accident, the Company had no liability to ## **M.A.C.A No.734 of 2010** 4 indemnify the insurer. 6. The Tribunal adjudicated the matter. Exts.A1 to A8 marked on the side of the appellant and Exts.B1 to B3 marked on the side of the respondents. 7. The Tribunal appraised the evidence and finally granted Rs.66,040/- as compensation along with 7.5% interest and Rs.350/- as cost. 8. In this matter, the learned counsel for the appellant pressed for increase in compensation by fixing the monthly income at Rs.4,000/following the ratio in _**Ramachandrappa v. Manager, Royal Sundaram**_ _**Alliance Insurance Company Ltd.**_ : **(2011) 13 SCC** **236** . He also canvassed increase under the heads 'pain and sufferings' and 'loss of amenities' highlighting that the appellant sustained lacerated wound right forearm and fracture radius and ulna right. In this case, the appellant claimed Rs.6,000/- as income being an **M.A.C.A No.734 of 2010** 5 RC worker. Since no proper evidence adduced to substantiate the income, following the ratio in _**Ramachandrappa's**_ case (supra), Rs.4,000/- can be fixed as the monthly income, as the accident is of the year 2003. 9. Ext.A6 is the discharge summary issued from Fort Hospital Limited, Palakkad showing diagnosis, viz., fracture radius of ulna right and treatment by POP application as well as open reduction and internal fixation. The petitioner was hospitalised for a period of 6 days from 06.06.2003 to 11.06.2003. No disability certificate produced in this matter and, accordingly, the Tribunal rejected the claim towards disability income. 10. In this matter, the Tribunal granted Rs.8,000/- towards 'loss of earnings' for a period of 4 months @ Rs.2,000/- per month. Having considered the injuries and treatment, I am inclined to grant 'loss of earnings' for a period of 4 months @ Rs.4,000/- per month. ## **M.A.C.A No.734 of 2010** 6 Thus, **Rs.8,000/-** more is granted towards 'loss of earnings. 11. Apart from that the Tribunal granted Rs.12,000/- under the head 'pain and sufferings'. Considering the injuries and treatment, I am inclined to grant **Rs.8,000/-** more under the head 'pain and sufferings'. It is noticed that the Tribunal granted only Rs.3,000/- towards 'loss of amenities' and Rs.1,000/towards 'extra nourishment'. Considering the injuries and treatment, I am inclined to grant **Rs.12,000/-** more under the head 'loss of amenities' and **Rs.3,000/-** more under the head 'extra nourishment'. 12. In this matter, since the 1[st] respondent failed to produce driving license in a case where the insurer raised the contention that the driver did not possess a valid driving license, recovery right granted by the Tribunal shall be given in so far as the enhanced **M.A.C.A No.734 of 2010** 7 compensation also. Thus the said right is granted. 13. In the result, this appeal is allowed. It is held that the appellant is entitled to get Rs.97,040/- as compensation out of which Rs.66,040/- was granted by the Tribunal and the balance amount of **Rs.31,000/-** (Rupees Thirty One Thousand Only) is granted as enhanced compensation with the same rate of interest awarded by the Tribunal, payable by the 3[rd] respondent, Insurance Company from the date of petition till the date of deposit or realisation, excluding interest for the period of 222 days in filing this appeal as ordered in the order dated 04.12.2019 in C.M.Application No.955/2010). It is specifically ordered that the Insurance Company can realise the entire award amount including the enhanced compensation along with interest from the 1[st] respondent, the insured, immediately on deposit ## **M.A.C.A No.734 of 2010** **==> picture [7 x 9] intentionally omitted <==** of the same before the Tribunal. The Insurance Company is directed to deposit the amount in the name of the appellant within two months from today. On deposit, the appellant is entitled to release the same. Sd/- ## **A.BADHARUDEEN, JUDGE.** ww