Raveendran s/o Gopal v. Josy Tharappel Veedu; A.J. Simon Akasalayil; ICICI Lombard General Motor Insurance Co. Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. FRIDAY, THE 15[TH] DAY OF MARCH 2024 / 25TH PHALGUNA, 1945** ## **MACA NO. 2285 OF 2013** **AGAINST THE ORDER/JUDGMENT DATED 20.05.2011 IN OPMV NO.1756** **OF 2007 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOTTAYAM** ## **APPELLANT/PETITIONER:** **RAVEENDRAN S/O. GOPALAN, OLIKKARAYIL VEEDU, VELLOOR P.O., VAIKOM TALUK, PIN - 686 501** **BY ADV SRI.P.M.NATESAN** ## **RESPONDENT/RESPONDENTS:** - **1 JOSHY THARAPPEL VEEDU, AVARMMA P.O., MULAKKULAM, PIN - 686 610** - **2 A.J.SIMON AKASALAYIL HOUSE, KEEZHOOR P.O., THALAYOLAPARAMBU, PIN - 686 605.** - **3 THE ICICI LOMBARD GENERAL MOTOR INSURANCE CO.LTD. COCHIN - 682 035.** **BY ADVS. SRI.R.AJITH KUMAR 12884 GEORGE A.CHERIAN LATHA SUSAN CHERIAN(K/412/2008) GEORGE CHERIAN (SR.)(G-81)** THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 15.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A No. 2285 of 2013 2 ## **JUDGMENT** The appellant was the petitioner in OP(MV) 1756/2007 on the files of the Motor Accident Claims Tribunal, Kottayam. The said claim petition was submitted by him seeking compensation for the injuries sustained in a motor accident that occurred on 01.03.2007. 2. According to the appellant, the accident occurred when the motorcycle ridden by him, was hit by a tipper lorry driven by the first respondent in a rash and negligent manner. The second respondent was the owner of the said lorry and it was insured with the third respondent. According to him, he was aged 58 years at the time of the accident and was working as a mason with a monthly income of Rs.7,500/-. He sustained serious injuries in the accident and the claim petition was submitted in such circumstances. 3. The third respondent alone contested the matter by filing a written statement. They contended that there was no insurance policy in existence, for the said lorry. They denied the M.A.C.A No. 2285 of 2013 **==> picture [7 x 9] intentionally omitted <==** negligence alleged against the first respondent as well. The quantum of compensation was also disputed by them. 4. To substantiate the contention, the appellant produced Exts. A1 to A11 and no evidence was adduced by the respondents. After appreciating the said materials, the Tribunal arrived at the finding that the accident occurred due to the negligence of the first respondent in driving the lorry. The contention of the third respondent to the effect that the vehicle was not covered with a valid policy was accepted. Accordingly, the third respondent was exonerated from liability. The quantum of compensation was fixed as Rs.1,01,513/- and the said amount was to be recovered from respondents 1 and 2 with interest at the rate of 7.5% per annum from the rate of petition till realization and with a cost of Rs. 2,200/-. This appeal is submitted in such circumstances by the appellant, challenging the exoneration of the third respondent, insurer and also seeking enhancement of compensation. 5. Heard, Sri P. M. Natesan, the learned counsel appearing for the appellant and Smt.Latha Susan Cherian, the learned counsel appearing for the third respondent. M.A.C.A No. 2285 of 2013 **==> picture [7 x 9] intentionally omitted <==** 6. The first contention raised by the learned counsel for the appellant is that the vehicle was covered with a valid policy and in the memorandum of appeal, they specifically mentioned the policy number as 3003/1139494/00/000 dated 30.11.2006 which was valid for a period from 30.11.2006 to 29.11.2007. Thus, it was contended that as on the date of the accident, there was a valid policy. 7. The learned counsel appearing for the third respondent after obtaining instruction from the insurer fairly admitted that, the policy referred to in the appeal memorandum, pertains to the policy issued to the vehicle involved in the accident and thus, there was coverage of policy. In the light of the above, the finding of the Tribunal exonerating the third respondent insurer is only to be interfered with and it is ordered accordingly. 8. The next aspect to be considered is the quantum of compensation. As mentioned above, the appellant was aged 58 years at the time of the accident, who was earning an amount of Rs.7,500/- per month from his avocation as a mason. However, the Tribunal took the monthly income as Rs.4,000/-. M.A.C.A No. 2285 of 2013 5 9. Similarly, even though no disability certificate was produced, the Tribunal took the percentage of disability as 5% taking note of the injuries sustained by the appellant in the accident and the possible consequences thereof. As far as the monthly income of Rs.4,000/- is concerned, the same appears to be on the lower side, considering the fact that the accident occurred in the year 2007. It is to be noted that, in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236]** , the Honourable Supreme Court was pleased to fix the monthly income of an ordinary employee as Rs.4,500/- for the year 2004. Therefore, the monthly income in this case could be reasonably fixed as Rs.6,000/-, considering the fact that the accident occurred in the year 2007. Thus, when reassessing the compensation, by taking the revised monthly income and applying the multiplier of '9' which is applicable in the light of **Sarla Verma** **v. Delhi Transport Corporation** [2010 (2) KLT 802] , since he was aged 58 years at the time of the accident, the amount of compensation for disability comes to Rs.32,400/- (6,000 x 12 x 9 x 5/100). The amount already awarded by the Tribunal under M.A.C.A No. 2285 of 2013 **==> picture [7 x 9] intentionally omitted <==** this case is Rs.19,200 and thus the additional compensation comes to Rs.13,200/-. 10. In the light of the revision of monthly income, the appellant would be entitled to an additional compensation under the head of loss of earnings. The amount awarded by the Tribunal is for a period of six months which was calculated at the rate of Rs.4,000/-. The period accepted by the Tribunal for this purpose appears to be reasonable and hence in the light of revision of monthly income, an additional amount of Rs.12,000/- is awarded. 11. The amount awarded by the Tribunal towards pain and suffering was Rs.15,000. It is discernible from the records that , the appellant sustained injuries to forehead near right side of eyebrow, avulsion of skin over medial aspect of left foot with fracture injuries. A portion of his left toe was amputated and the entire portion of his left foot is covered with dead tissues. He had undergone inpatient treatment for 72 days consequent to the injuries. When all the aforesaid aspects are taken into consideration, a further sum of Rs.15,000/- is awarded towards pain and suffering. M.A.C.A No. 2285 of 2013 7 12. Similarly, the amount awarded by the Tribunal towards loss of amenities was Rs.10,000/- which appears to be on the lower side. Considering the nature of injuries as referred to above and the difficulties and disabilities arising therefrom, I deem it appropriate to grant a further sum of Rs.10,000 under the said head. Thus the total additional compensation is determined as Rs.50,200/- (13,200 + 12,000 + 15,000 + 10,000). Thus the total compensation is reassessed as Rs.1,51,713/- (1,01,513 + 50,200). In the result, this appeal is allowed. The award dated 20.05.2011 passed by the Motor Accidents Claims Tribunal, Kottayam in OP(M.V) No. 1756/2007 is hereby modified with the following findings/orders. i) The finding exonerating the third respondent, the insurer, from the liability is hereby set aside. It is held that, the vehicle at the relevant time was validly insured with the third respondent and hence the third respondent is held liable to pay the compensation. ii) The quantum of compensation is reassessed as Rs.1,51,713/- (Rupees one lakh fifty one thousand seven hundred M.A.C.A No. 2285 of 2013 **==> picture [7 x 9] intentionally omitted <==** and thirteen only) and the said amount shall be recoverable from the third respondent with interest at the rate as ordered by the Tribunal and with proportionate cost. iii) However, It is clarified that, as there was delay of 793 days in filing the appeal, and the same was condoned by this Court subject to the condition that the appellant shall not be entitled to interest for the said period, the third respondent shall be at liberty to exclude the said period while computing the interest on the compensation awarded. Sd/- **ZIYAD RAHMAN A.A. JUDGE** rpk