Navas v. A. Shajahan Moozhiyil & The Manager Oriental Insurance Co. Ltd. (MACA No.2041 of 2016)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. TUESDAY, THE 17[TH] DAY OF OCTOBER 2023 / 25TH ASWINA, 1945** **MACA NO. 2041 OF 2016** **AGAINST THE ORDER/JUDGMENT OPMV 190/2007 OF MOTOR ACCIDENT CLAIMS** **TRIBUNAL ,ATTINGAL** ## **APPELLANT/APPLICANT:** NAVAS AGED 42 YEARS AGED:42 YEARS, PARAVILA VEEDU, KALLARAKKONAM, PAKALKURI, PALLICKAL, THIRUVANANTHAPURAM BY ADVS. SRI.R.T.PRADEEP SRI.J ROBINSON ## **RESPONDENT/RESPONDENTS:** 1 A.SHAJAHAN MOOZHIYIL THOTTINKARA VEEDU, KOKKOTTUKONAM PO, PALLICKAL-695604 2 THE MANAGER ORIENTAL INSURANCE CO.LTD, RAMAKRISHNA BUILDING, ARISTO JUNCTION, THAMPANOOR, THIRUVANANTHAPURAM-695001 BY ADVS. SHAJIN S.HAMEED P.M.SANEER(K/1548/1999) ## **OTHER PRESENT:** ADV GEORGE A CHERIYAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 M.A.C.A No.2041 of 2016 ## **JUDGMENT** The appellant is the petitioner in O.P.(M.V) No. 190/2007 on the files of the Motor Accidents Claims Tribunal, Attingal. The said claim petition was submitted by him seeking compensation for the injuries sustained to him in a motor accident that occurred on 18.09.2006. 2. According to the appellant, the accident occurred when the motorcycle ridden by him was hit by a Jeep bearing registration No.KL-01/5967, driven by the 1[st] respondent. The said vehicle was owned by the 1[st] respondent himself and insured with the 2[nd] respondent herein. Consequent to the injuries, he sustained a physical disability. According to him, he was working as a coolie with a monthly income of Rs.5,000/- and his age was 33 years at the time of the accident. The claim petition was submitted in such circumstances. 3. The 1[st] respondent did not appear and was set _exparte_ . The 2[nd] respondent/insurance company appeared and filed a written statement admitting the coverage of the policy in respect of the vehicle. However, they disputed the negligence and the 3 ## M.A.C.A No.2041 of 2016 quantum of compensation. They also alleged violation of policy conditions. The evidence in this case consists of Exts. A1 to A18 from the side of the appellant and from the side of the respondents, Ext.B1 was marked. 4. After the trial, the Tribunal came to the conclusion that the accident occurred due to the negligence on the part of the 1[st] respondent and being the insurer of the vehicle, the 2[nd] respondent was held liable to pay the compensation. The quantum of compensation was fixed as Rs.2,20,446/-. However, the Tribunal found that the 1[st] respondent did not have the license, and hence the 2[nd] respondent was permitted to recover the compensation from the 1[st] respondent after satisfying the award. This appeal is submitted by the appellant in such circumstances seeking enhancement of the compensation. 5. Heard, Sri. R.T Pradeep, the learned counsel appearing for the appellant, Sri. Shajin S Hameed, the learned counsel appearing for the 1[st] respondent and Smt. K.S Santhi, the learned counsel appearing for the 2[nd] respondent/insurance company. 6. The main contention put forward by the learned counsel for the appellant is with regard to the inadequacy of compensation 4 ## M.A.C.A No.2041 of 2016 awarded by the Tribunal under various heads. The main challenge is against the compensation awarded for physical disability. It was pointed out that the Tribunal went wrong in taking the monthly income and also the percentage of disability. On examining the materials placed on record, I find some force in the said contention. The percentage of disability suffered by the appellant is clearly mentioned in the Ext.A7 disability certificate. In the said certificate, after examining the appellant, it was certified as 40% by the members of the medical board. The Tribunal did not accept the certificate merely because of the reason that the doctor was not examined. In the light of the observations made by the Honourable Supreme Court in **Raj Kumar vs. Ajay Kumar & Another** [2011 (1) SCC 343], when the disability certificate is produced by the victim, the Tribunal cannot scale down the percentage of disability certified therein. In this case, on going through the contents of Ext.A7, I am unable to find any discrepancies requiring any reduction in the percentage of disability certified therein. Therefore, the 40% of disability as certified therein can be accepted. 5 M.A.C.A No.2041 of 2016 7. When it comes to the monthly income, it is contended by the learned counsel for the insurance company that no increase needs to be made as the amount claimed is only Rs.5,000/-. However, going by the principles laid down by the honourable Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd** _**.**_ **[(2011) 13 SCC 236]** , for an ordinary employee, even without any evidence, the monthly income has been fixed as 4,500/- in respect of an accident occurred in the year 2004. Going by the said standards, the proper monthly income in this case can be fixed as Rs.5,500/-. Of course, it is true that the claim was only Rs.5,000/-. In **Minu** **Rout & Another v. Satyapradyumna Mohapatra & Ors.** [(2013) 10 SCC 695], the honourable Supreme Court has taken a higher monthly income than claimed and therefore, I do not find any absolute restriction in confining the monthly income to the amount claimed in the claim petition. The materials placed on record and the period of the accident justify higher monthly income than what was declared in the Original petition. Therefore, I take the monthly income as Rs.5,500/-. While reassessing the compensation with the revised monthly income 6 M.A.C.A No.2041 of 2016 and percentage of disability, the amount would come to Rs.4,22,400/(5,500x12x16x 40%). After deducting Rs.1,15,200/- already awarded by the Tribunal under this head, the additional amount would come to Rs.3,07,200/-. 8. When moving on to the other heads, it can be seen that the Tribunal has awarded an amount of Rs.30,000/- towards pain and suffering. It is discernible from the award itself that the appellant appeared in person before the Tribunal on 02.02.2016, which is after almost ten years after the accident. The Tribunal noticed that the wound sustained by him was not healed even on that day due to the infection. Therefore, the said aspect is to be considered while fixing the compensation for pain and suffering. Therefore, I grant a further sum of Rs.30,000/- under the said head. Similarly, the amount awarded by the Tribunal for loss of amenities is Rs.30,000/-, which is also on the lower side. Considering the nature of the injuries and the consequence of the same in the form of the disability sustained by him, I am of the view that a further sum of Rs.30,000/- has to be granted under the said head. 7 M.A.C.A No.2041 of 2016 9. Another head which requires reconsideration is loss of earnings. Consequent to the revision of monthly income as Rs. 5,500/-, the appellant is entitled to additional compensation. The Tribunal awarded compensation under the said head for eight months. Thus, while revising the compensation, the amount would come to Rs.44,000/- and after deducting Rs.24,000/already awarded by the Tribunal, the additional amount would come to Rs.20,000/-. Thus, the total additional compensation receivable by the appellant is determined as Rs.3,87,200/(3,07,200 + 30,000 + 30,000 + 20,000). In the light of the aforesaid observation, this appeal is allowed, the award dated 24.02.2016 passed by the Motor Accidents Claims Tribunal, Attingal in O.P(M.V) No, 190/2007 is hereby modified by granting an additional compensation of Rs.3,87,200/- (Rupees three lakhs eighty seven thousand and two hundred only) and the 2[nd] respondent/insurance company is directed to deposit the said amount with interest at the rate as ordered by the Tribunal and proportionate costs, within a period of three months from the date of receipt of a copy of this judgment. It is further clarified that, as the Tribunal granted the right of 8 M.A.C.A No.2041 of 2016 recovery to the 2[nd] respondent/insurance company after satisfying the award, it shall be open for the 2[nd] respondent to recover the said additional compensation from the 1[st] respondent after depositing the said amount. Sd/- **ZIYAD RAHMAN A.A JUDGE** rpk