M.V. Suresh v. Madhavan V.K. and Others

MACA.No.2351/2009 1 # _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ # _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A._ _TUESDAY, THE 5[TH] DAY OF DECEMBER 2023 / 14TH AGRAHAYANA,_ _1945_ ## _MACA NO. 2351 OF 2009_ _AGAINST THE ORDER/JUDGMENT OPMV 1524/2004 OF MOTOR ACCIDENT_ _CLAIMS TRIBUNAL , IRINJALAKUDA_ ## _APPELLANT/PETITIONER:_ _M.V.SURESH,_ _MADATHIPARAMBIL HOUSE, VELLANGALLUR DESOM, VADAKKUMKARA VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT._ _BY ADV SRI.V.BINOY RAM_ ## _RESPONDENTS/RESPONDENTS:_ - _1 MADHAVAN V.K., VAZHAPPILLI HOUSE, KODAKARA, THRISSUR DISTRICT._ - _2 JOJU, S/O.JOSE, KUTTIYIL HOUSE, KADUPPASSERY VILLAGE, KOTTANELLUR DESOM, THRISSUR DISTRICT._ - _3 THE MANAGER, ORIENTAL INSURANCE CO.LTD, SOUTH JUNCTION, CHALAKUDY, THRISSUR DISTRICT._ - _4 SUBRAMANIAN.M.C., MUDIKOOTAM HOUSE, KHANNA NAGAR, P.O KORATTY, THRISSUR DISTRICT._ - _5 DAYOMIN.P.D., S/O.DAVIS.P.C, POZHOLIPARAMBIL HOUSE, VELLANGULLARA.P.O,_ MACA.No.2351/2009 2 _THRISSUR DISTRICT._ _6 THE MANAGER, UNITED INDIA INSURANCE CO.LTD, SREE KUMAR BUILDINGS, SOUTH JUNCTION, CHALAKUDY, THRISSUR DISTRICT._ _BY ADVS. SRI.P.V.BABY SRI.GEORGE CHERIAN THIRUVALLA SMT.D.GEETHA SMT.K.SHERIN MOHAN_ _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 05.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ MACA.No.2351/2009 3 ## **JUDGMENT** The appellant was the petitioner in O.P.(MV).No.1524 of 2004 on the file of the Motor Accidents Claims Tribunal, Irinjalakuda. The said claim petition was submitted by him seeking compensation for the injuries sustained to him in a motor accident that occurred on 21.08.2004. 2. According to the appellant, the accident occurred when they were travelling in an autorickshaw bearing registration No.KL-8/L-6621 driven by the 5th respondent, owned by the 4th respondent and insured with the 6th respondent, it hit against another auto-rickshaw bearing registration No.KL 8/L 1762. The said auto-rickshaw was being driven by the 2nd respondent. The 1st respondent was the owner of the said autorickshaw which was insured with the 3rd respondent. According to the appellant, he was a mason aged 32 years with a monthly income of Rs.4,500/-. He sustained serious injuries, consequent to which, he suffered physical disablement as well. The claim petition was submitted in such circumstances. MACA.No.2351/2009 4 3. The 3[rd] respondent and 6th respondent Insurance Companies filed written statements admitting the coverage of policies in respect of the autorickshaws. Both of them denied the negligence and the quantum of compensation as well. A further contention raised by the 3[rd] respondent/Insurance Company is that the 2nd respondent was not having a valid driving licence to drive the autorickshaw. 4. The evidence in this case consists of oral evidence of PW1 and Exts.A1 to A10 from the side of the appellants. From the side of the respondents, Exts.B1 and B2 were marked. After the trial, the Tribunal came to the conclusion that the accident occurred due to negligence on the part of the 2[nd] respondent in driving the autorickshaw bearing registration No.KL-8/L 1762. However, as it was found that the 2[nd] respondent was not having valid driving licence at the time of the accident, the 3[rd] respondent/Insurance Company was exonerated from liability. The quantum of compensation was fixed at Rs.42,550/-, and the said amount was directed to be deposited by respondents 1 and 2 with interest at the rate of 7% per annum from the date of MACA.No.2351/2009 5 petition till realization. This appeal is submitted by the appellant in such circumstances challenging the exoneration of the 3[rd] respondent Insurance Company and also seeking enhancement of compensation. 5. Heard Sri.Binoy Ram V., learned counsel for the appellant and Sri.P.V.Baby, learned counsel for the 4[th] respondent and Sri.Sherin Mohan, learned counsel for the 6th respondent. 6. The first contention to be taken into consideration is regarding the finding of the Tribunal exonerating the Insurance Company. The contention raised by the 3[rd] respondent/insurer, was the one relating to the violation of policy conditions as the 2[nd] respondent drove the vehicle without valid driving licence. It is a well-settled position of law that in a case of violation of policy conditions, primary liability is to be fixed upon the Insurance Company by granting them a right to recover the compensation from the owner and the driver of the vehicle. This is particularly because, as far as the violation of policy is concerned, it is a dispute between the insurer and the insured, and the same cannot stand in the way of the claimant getting compensation for MACA.No.2351/2009 6 the injuries sustained in the accident expeditiously. As the provisions of the Motor Vehicles Act are part of welfare legislation, the courts are obligated to ensure the speedy disbursal of compensation to the victims. Therefore, the proper course that ought to have been adopted by the Tribunal was to direct the Insurance Company to satisfy the award and then permit the company to recover the said compensation from the owner and driver of the said vehicle. Thus, the finding of the Tribunal exonerating the Insurance Company is set aside and 3[rd] respondent is held liable to pay the compensation at the first instance, with the right to recover the said amount from the respondents 1 and 2, after satisfaction of the award. 7. The next aspect relates to the quantum of compensation. The specific contention put forward by the learned counsel for the appellant is that, despite the fact that the appellant suffered 7% physical disability, no amount was granted towards compensation for the same. It is seen from the records that even though the Ext.A9 disability certificate wherein, 7% permanent disability is certified, was produced, the same was not MACA.No.2351/2009 7 accepted by the court merely because, the Doctor was not examined. However, I am of the view that in all cases, the examination of the Doctor who issued the certificate is not necessary. When the certificate contains no serious discrepancies which forces the Tribunal to discard the same, the same can be accepted. Moreover, in this case, going by the nature of injuries sustained by the appellant, which includes, crush injury on the right thumb with fracture of the distal phalanx and fracture of the greater tuberosity of the numerus and the other injuries, I am of the view that, the percentage of disability certified is a probable one. Therefore, I am of the view that there is no justification in discarding the percentage certified therein, as there is no discrepancy in the assessment made. 8. The next aspect relates to the monthly income. The Tribunal accepted the monthly income as Rs.2,000/-, even though the claim was for Rs.4,500/-. It is to be noted that the accident occurred in the year 2004. In **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance co. Ltd. [2011 (13) SCC 236],** the Honourable Supreme Court pleased to take the MACA.No.2351/2009 8 monthly income of an ordinary employee, even in the absence of any evidence as Rs.4,500/- in respect of an accident in the year 2004. Therefore, I am of the view that Rs.4,500/- claimed by the appellant is a reasonable amount and it is accepted. Thus, while re-assessing the compensation with the revised monthly income of Rs.4,500/- and taking the percentage of physical disability as 7%, the compensation for disability would come to Rs.60,480/(4500 x 12 x 16 x 7/100). 9. Consequent to the revision of the monthly income, the appellant would be entitled to additional compensation under the head of loss of earnings. The Tribunal awarded compensation under the said head for a period of three months. Therefore, the additional amount would come to **Rs.7,500/-** . 10. Towards compensation for pain and suffering, an amount of Rs.15,000/- was awarded by the Tribunal, which appears to be on the lower side. Therefore, a further sum of **Rs.10,000/-** is awarded under the said head. Similarly, considering the nature of the injuries and the consequential disability, I deem it appropriate to grant a further sum of MACA.No.2351/2009 9 **Rs.8,000/-** under the head of loss of amenities as the amount of Rs.7,000/-awarded by the Tribunal under the said head appears to be on the lower side. Thus, the total additional compensation is determined as Rs.85,980/- [60480+7500+10000+8000] and the total compensation receivable by the appellant is determined as Rs.1,28,530/- [42550+85980]. In the light of the aforesaid observations and findings, this appeal is allowed with the following directions: The finding of the Tribunal exonerating the 3[rd] respondent/Insurance Company from the liability is set aside. It is held that the 3[rd] respondent shall be liable to pay the entire amount of compensation at the 1st instance and after satisfying the award, they shall be entitled to recover the said compensation from the respondents 1 and 2. The amount of compensation is determined as Rs.1,28,530/- (Rupees one lakh twenty-eight thousand five hundred and thirty only), and the said amount shall be deposited by the 3[rd] respondent Insurance Company along with interest at the rate of 7% per annum from the date of petition till realization with proportionate costs. After MACA.No.2351/2009 10 satisfying the award, the said amount can be recovered from the 1[st] and 2[nd] respondents The 3[rd] respondent shall deposit the said amount within a period of three months from the date of receipt of a copy of this judgment. Sd/- **ZIYAD RAHMAN A.A. JUDGE** DG/7.12.23