N.I. Gangadharan v. Madhu K.M. and Rishikesan K.S. and United India Insurance Co. Ltd.

MACA.No.1619/12 1 ## _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ ## _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A._ _FRIDAY, THE 29[TH] DAY OF SEPTEMBER 2023 / 7TH ASWINA, 1945_ ## _MACA NO. 1619 OF 2012_ _AGAINST THE ORDER/JUDGMENT OPMV 782/2007 OF MOTOR ACCIDENT_ _CLAIMS TRIBUNAL , IRINJALAKUDA_ ## _APPELLANT/PETITIONER:_ _N.I.GANGADHARAN, S/O.INNIRIKUTTY, NADUVALAPPIL HOUSE, MANAVALASSERY VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT._ _BY ADVS.SRI.P.V.BABY SRI.A.N.SANTHOSH_ ## _RESPONDENTS/RESPONDENTS:_ _1 MADHU K.M., S/O. MADHAVAN NAIR, KUZHJUKKOLI HOUSE, THALIKULAM, THRISSUR-680 569._ _2 RISHIKESAN K.S., S/O. SUBRAHMANYAN, KOOTHUPALAKKAL HOUSE, HARIPURAM DESOM, MANAVALSSERY VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT, THANISSERY P.O., PIN-680 701._ _3 THE MANAGER, UNITED INDIA INSURANCE CO. LTD., ALENGADEN BUILDING, TANA, IRINJALAKUDA P.O., PIN-680 121._ _BY ADVS. SMT.S.JAYASREE_ MACA.No.1619/12 2 _THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 29.09.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:_ MACA.No.1619/12 3 ## **J U D G M E N T** The appellant is the petitioner in O.P.(MV).No.782 of 2007 on the file of the Motor Accidents Claims Tribunal, Irinjalakkuda. 2. The aforesaid claim petition was submitted by him seeking compensation for the injuries sustained to him in a motor accident that occurred on 21.08.2006. According to him, the accident occurred when the autorickshaw on which he was travelling capsized due to the rash and negligent driving of the same by the 2[nd] respondent. The said vehicle was owned by the 1[st] respondent and was insured with the 3[rd] respondent. According to him, he was 61 years old at the time of the accident and engaged in the diamond business, earning a monthly income of Rs.7,000/-. Consequent to the injuries, he sustained physical disablement and compensation of Rs.1,50,000/- was sought. 3. The 1[st] and 2[nd] respondents remained ex parte, and the 3[rd] respondent filed a written statement admitting the coverage of the policy of the autorickshaw. However, the Insurance Company disputed the negligence and the quantum MACA.No.1619/12 4 of compensation. It was also contended that the driver did not have a valid driving licence and badge at the time of the accident. Therefore, the exoneration of the 3[rd] respondent from the liability was also sought. 4. Evidence in this case consists of Exts.A1 to A9 from the appellant's side, and Exts.B1 and B2 were marked on the side of the 3[rd] respondent. After considering the materials placed on record, the Tribunal arrived at the conclusion that the accident occurred due to the negligence of the 2[nd] respondent and being the Insurer, the 3[rd] respondent was held liable to pay the compensation. The Tribunal further granted the right of recovery to the appellant from the 1[st] respondent after satisfying the award, as it was found that there was a violation of policy conditions. The quantum of compensation was fixed as Rs.58,894/-. This appeal is submitted by the appellant in such circumstances seeking enhancement of the compensation. 5. Heard Sri.P.V.Baby, learned counsel for the appellant and Smt.S.Jayasree, learned counsel for the 3[rd] respondent Insurance Company. Even though notices were served upon the other respondents, there is no appearance for them. MACA.No.1619/12 5 6. The learned counsel for the appellant would submit that the amount awarded by the Tribunal is inadequate. It was pointed out that even though Ext.A8 disability certificate was produced, the same was not considered by the Tribunal, and no amount was awarded towards the compensation for disability. The amounts awarded under the other heads were also on the lower side, contends the learned counsel for the appellant. The learned counsel for the Insurance Company would oppose the contentions put forward by the learned counsel for the appellant. 7. After considering all the materials placed on record, I find some force in the contentions put forward by the learned counsel for the appellant. As regards the disability compensation, it is seen that, even though the amount of Rs.25,000/- was claimed, the Tribunal did not consider the same. Ext.A8 disability certificate produced by the appellant was also not considered. I have carefully gone through the certificate, which was issued by an Orthopedic Doctor. The nature of injuries and the consequences of such injuries are clearly mentioned in the certificate, and the disability was certified as 15% after applying the McBride scale. From the MACA.No.1619/12 6 nature of injuries sustained by the appellant and his age, I am of the view that the percentage of disability certified in the said certificate can be accepted as such. In this regard, as pointed out by the learned counsel for the appellant, the observations made by this Court in **Manikantan G. v. K.Janardhanan Nair and Others [2021(5) KHC 305]** , this Court is also relevant. It is to be noted that in the said decision, after referring to the decisions laid down by the Honorable Supreme Court in **Raj Kumar v. Ajay Kumar [2011 (1) KLT 620 SC],** it was held that the Tribunal could not ignore the disability certificate produced and cannot scale down the percentage of disability certified therein. In this case, there are no observations regarding the medical certificate. The nature of the injuries sustained by the appellant and possible impacts of the same, which are explained in the disability certificate, also prompts this Court to accept the percentage of disability in the certificate, and it is ordered accordingly. 8. The next aspect is about the monthly income of the appellant. The Tribunal had taken the monthly income of Rs.3,000/-. It is true that even though the amount of Rs.7,000/was claimed as monthly income, absolutely no evidence was MACA.No.1619/12 7 adduced to substantiate the same. However, while computing the monthly income based on the principles laid down by the Supreme Court in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd [(2011) 13 SCC 236]** , **Syed Sadiq v. Divisional Manager, United India Insurance Company [(2014) 2 SCC 735],** even in respect of an ordinary worker, the monthly income can be fixed as Rs.5,500/- in respect of an accident occurred in the year 2006. Therefore, I deem it appropriate to fix the monthly income in this case as Rs.5,500/-. While assessing the compensation for permanent disability, with the above revised criteria, it would come to Rs.69,300/- [5500 x 12 x 7 x 15/100]. Consequent to the revision of monthly income, the appellant would be entitled to a further amount under the head of loss of earnings, and it would come to Rs.7,500/- [2500 x 3]. Similarly, the amount awarded under the head of pain and suffering is only Rs.15,000/-, which appears to be on the lower side, considering the nature of the injuries. Therefore, a further sum of Rs.15,000/- is granted under the said head. For the same reason, a further sum of Rs.15,000/- is granted towards the loss of amenities as well. No amount is seen granted towards MACA.No.1619/12 8 damage to clothing and articles. A sum of Rs.1,000/- appears to be reasonable under this head. Thus, the total additional amount receivable by the appellant is Rs.1,07,800/-. In the light of the aforesaid observations and findings, the award dated 06.02.2012 passed by the Motor Accidents Claims Tribunal, Irinjalakuda in O.P.(MV).No.782 of 2007 is hereby modified by granting an additional amount of Rs.1,07,800/(Rupees one lakh seven thousand and eight hundred only). The 3[rd] respondent Insurance Company is directed to deposit the same along with interest at the rate as ordered by the Tribunal with proportionate costs thereof within a period of three months from the date of receipt of a copy of this judgment. It is clarified that as this Court did not interfere with the finding of the Tribunal with regard to the right of recovery, it shall be open for the Insurance Company to recover the said amount from the 1[st] respondent after satisfying the award. Sd/- ## **ZIYAD RAHMAN A.A.** ## **JUDGE** DG/4.10.23