Safriyen Joy S/O Joy vs Williams A.A. S/O Antony; United India Insurance Company Ltd. (MACA Nos.1481 of 2012) AND Aneesh S/O Ananth ANANTHAN vs Williams A.A. S/O Antony; United India Insurance Company Ltd. (MACA No.1482 of 2012)

MACA Nos.1481 & 1482 of 2012 1 ## **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. 1481 OF 2012** **AGAINST THE ORDER/JUDGMENT OPMV 512/2008 OF MOTOR ACCIDENT** **CLAIMS TRIBUNAL, OTTAPPALAM** ## **APPELLANT/PETITIONER:** **SAFRIYEN JOY S/O.JOY, PULIKKOTTIL HOUSE, PURANATTUKARA P.O., THRISSUR TALUK, THRISSUR DISTRICT. BY ADV SRI.SHEJI P.ABRAHAM** ## **RESPONDENT/RESPONDETS:** **1 WILLAIMS A.A. S/O.ANTONY, 11/603, AALUKKAPARAMBIL HOUSE, ELAMTHURUTHY, KUTTANELLUR, THRISSUR TALUK, THRISSUR DISTRICT (OWNER CUM DRIVER OF KL 11 F 1415 AMBULANCE) 2 UNITED INDIA INSURANCE COMPANY LTD. PARTK HOUSE BUILDING, IIND FLOOR, ROUND NORTH, THRISSUR, POLICY NO.100600/31/06/02/00027786, VALID FROM 14.03.2007 TO 13.03.2008. BY ADVS. SRI.P.ABDUL RAZAK SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW SRI.R.NIKHIL R2- SRI.R.NIKHIL, R3 - SRI.P.JACOB MATHEW** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17.10.2023, ALONG WITH MACA.1482/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA Nos.1481 & 1482 of 2012 2 # **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. 1482 OF 2012** **AGAINST THE ORDER/JUDGMENT OPMV 506/2008 OF MOTOR ACCIDENT** **CLAIMS TRIBUNAL, OTTAPPALAM** ## **APPELLANT/PETITIONER:** **ANEESH S/O.ANANTHAN, VADAKKINETH (HOUSE), NELLANKKARA DESOM, OLLUKKARA VILLAGE, THRISSUR TALUK, THRISSUR DISTRICT. BY ADV SRI.SHEJI P.ABRAHAM** ## **RESPONDENT/RESPONDENTS:** **1 WILLIAMS A.A. S/O.ANTONY, 11/603, AALUKKAPARAMBIL HOUSE, ELAMTHURUTHY, KUTTANELLUR, THRISSUR TALUK, THRISSUR DISTRICT (OWNER CUM DRIVER OF KL 11 F 1415 AMBULANCE) 2 UNITED INDIA INSURANCE COMPANY LTD. PARTK HOUSE BUILDING, IIND FLOOR, ROUND NORTH, THRISSUR, POLICY NO.100600/31/06/02/00027786, VALID FROM 14.03.2007 TO 13.03.2008. BY ADVS. SRI.P.ABDUL RAZAK SRI.M.A.GEORGE SRI.MATHEWS JACOB (SR.) SRI.P.JACOB MATHEW SRI.R.NIKHIL** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 17.10.2023, ALONG WITH MACA.1481/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA Nos.1481 & 1482 of 2012 3 ## **JUDGMENT** These appeals arose from a common award passed in O.P. (MV) Nos.506 and 512 of 2008. The said claim petitions were filed by the respective appellants seeking compensation for the injuries sustained to them in a motor accident that occurred on 15.01.2008. 2. The accident occurred when the motorcycle ridden by the petitioner in O.P. (MV) No.512/2008, along with the petitioner in O.P. (MV) No.506/2008 as the pillion rider, was hit by an ambulance bearing Registration No.KL-11F-1415, driven by the 1[st] respondent. The 1st respondent himself owned the said ambulance, and it was insured with the 2[nd] respondent/Insurance Company. Both claimants sustained injuries in the accident, and respective claim petitions were submitted by them seeking compensation. 3. The 1[st] respondent was _exparte,_ and the 2[nd] respondent/Insurance Company filed a written statement admitting the coverage of the policy in respect of the vehicle. However, it was contended that they issued the policy to the said vehicle as a 'Private Car', and it was used as an ambulance. Therefore, violation of policy conditions was urged, and they MACA Nos.1481 & 1482 of 2012 4 sought exoneration from the liability. Both claim petitions were tried together and disposed of by a common award. 4. The evidence in these cases consists of oral evidence of PWs 1 to 3 and Exts.A1 to A19, B1 and X1. After the trial, the Tribunal found that the accident occurred due to the negligence on the part of the 1[st] respondent. However, it was found that there was a violation of policy conditions on the part of the 1st respondent, and therefore, even though the insurer was directed to satisfy the award at the first instance, they were granted the right to recover the said compensation from the 1[st] respondent. The quantum of compensation in O.P. (MV) No.506/2008 was fixed as Rs.1,68,290/-, whereas in O.P. (MV) No.512/2008, it was fixed as Rs.3,41,750/-. The said amounts were directed to be deposited by the 2[nd] respondent/Insurance Company with interest at the rate of 7% per annum from the date of petition till realisation, subject to the right to recover the said compensation from the 1[st] respondent. 5. MACA No.1482/2012 was filed by the petitioner in O.P. (MV) No.506/2008, and MACA No.1481/2012 was filed by the petitioner in O.P. (MV) No.512/2008. Earlier, the 1[st] respondent MACA Nos.1481 & 1482 of 2012 5 herein filed MACA Nos.413/2015 and 3386/2014, challenging the right of recovery granted to the Insurance Company. Both appeals were allowed by setting aside the right of recovery granted by the Tribunal to the 2[nd] respondent/Insurance Company. 6. Heard Sri. Sheji P. Abraham, the learned counsel for the appellants in both the appeals, Sri.R. Nikhil, the learned counsel appearing for the 1[st] respondent and Sri.Jacob Mathew, the learned counsel appearing for the 2[nd] respondent/Insurance Company. 7. In both these appeals, the challenge is in respect of the quantum of compensation. Therefore, their contentions have to be dealt with separately. 8. MACA No.1482/2012 arising from O.P. (MV) No.506/2008. 8.1. The appellant in this case, was the pillion rider of the vehicle, who sustained severe injuries. According to him, he was working as an insurance agent of Max New York Life Insurance Company and was aged 23 years at the time of the accident. The monthly income claimed was Rs.20,519/-. To substantiate the said contention, he got himself examined as PW2, and to establish the physical disability of 9%, Ext.A6 was produced. However, the MACA Nos.1481 & 1482 of 2012 6 Tribunal took the monthly income as Rs.4,000/- and the physical disability was taken as 6% instead of 9% as certified by the Doctor. Those aspects are mainly under challenge in this appeal. 8.2. After carefully going through the materials placed on records, I find some force in the contention relating to the monthly income. The appellant relies on Ext.A16 to substantiate his monthly income of Rs.20,519/-. Discarding the said certificate, the Tribunal fixed the monthly income as Rs.4,000/-. I have carefully gone through the said certificate. However, it contains various elements which are variable in nature. The basic salary is shown as only Rs.5,625/- and the majority of the other heads are allowances depending upon the performance of the appellant from time to time. Therefore, the amount shown in the said Salary Certificate as such cannot be taken into consideration. However, it is to be noted that he was a person with adequate qualifications and is employed in an Insurance Company as an agent. When the monthly income is computed by taking into consideration the principles laid down in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** [(2011) 13 SCC 236] and **Syed Sadiq & Ors. v. Divisional Manager, United India Insurance Company Ltd.** [2014 (2) MACA Nos.1481 & 1482 of 2012 7 SCC 735], in respect of an accident occurred in the year 2008, the monthly income for an ordinary employee, even without any evidence, can be fixed as Rs.6,500/-. Here, in this case, there is some evidence to indicate that he was in regular employment and qualified. Therefore, a slightly higher income can be taken. In the facts and circumstances of the case, I deem it appropriate to fix it as Rs.9,000/-. 8.3. The next aspect relates to physical disability. Ext.A6 certificate was produced, and to substantiate the same, PW2 was also examined. However, on going through the certificate produced, it can be seen that the fracture referred to therein was united. Of course, there is stiffness of ankle and knee, etc. are mentioned. However, considering the nature of employment, the appellant engaged in and the reasons for assessing the disability mentioned in A6, I am of the view that the percentage of disability taken by the Tribunal, which is 6%, appears to be reasonable and, therefore, no interference is warranted. Thus, when reassessing the compensation with the revised monthly income and by keeping the other criteria adopted by the Tribunal intact, the amount of compensation under the head of physical disability would come to Rs.1,16,640/- (9,000x12x18x6/100). The Tribunal MACA Nos.1481 & 1482 of 2012 8 has awarded an amount of Rs.51,840/-; therefore, the additional amount would come to Rs.64,800/-. Consequent to the revision of monthly income, the appellant would be entitled to a further amount of Rs.15,000/- under the head of loss of earnings (9,000X3-12,000). 8.4. Similarly, the amount awarded under the head of pain and suffering is Rs.12,000/- which appears to be on the lower side and considering the nature of injuries, an amount of Rs.8,000/- is awarded. Similarly, for the same reasons, a further sum of Rs.5,000/- is granted under the head of loss of amenities. Thus, the additional compensation receivable by the appellant in MACA No.1482/2012 is determined as Rs.92,800/- (64,800 + 15,000 + 8,000 + 5,000). ## 9. MACA No.1481/2012 arising from O.P. (MV) No.512/2008. 9.1. In this case, the appellant was working in Saudi Arabia as a sales consultant. Ext.A17 was relied on to substantiate the same, wherein the monthly salary was shown as Rs.18,000/-. Besides the same, as per Ext.A11 Disability Certificate, his disability was certified as 22%. The Tribunal fixed the monthly income as Rs.5,000/- and took the physical disability as 10%. MACA Nos.1481 & 1482 of 2012 9 When considering the question of monthly income, eventhough the amount shown in Ext.A17 cannot be taken into consideration, because the same was not properly proved, the monthly income of Rs.5,000/- appears to be on the lower side. The appellant herein got himself examined as PW3 and deposed about his income. After considering all the relevant aspects, I deem it appropriate to fix the monthly income of the appellant as Rs.9,000/- based on the materials available on record. 9.2. As regards the percentage of disability, on scrutinising the Disability Certificate produced by the appellant and proved by the PW2, the assessment made by the Tribunal appears to be erroneous. In Ext.A11 Disability Certificate, the fracture of the femur and fracture of the 2[nd] , 3[rd] and 4[th] metacarpal are shown as malunited. Besides the same, several other aspects are mentioned in the certificate, which would justify the assessment of 22%. Moreover, the Ext.A11 certificate is proved by examining the doctor who issued the said certificate as PW2. Therefore, I have no reason to discard the percentage of disability certified in Ext.A11. Thus, the disability is fixed to assess the compensation as 22%. MACA Nos.1481 & 1482 of 2012 10 9.3. Thus, while reassessing the compensation with the above revised monthly income and the percentage of physical disability as 22%, the amount would come to Rs.4,03,920/ (9,000 x 12x 17 x 22/100). The amount awarded under the said head by the Tribunal is Rs.1,08,000/- and after deducting the said amount, the additional amount would come to Rs.2,95,920/-. Consequent to the revision of monthly income, the appellant would be entitled to a further sum of Rs.16,000/- under the head of loss of earnings. Considering the severe nature of the injuries and other relevant aspects, I deem it appropriate to grant a further sum of Rs.10,000/- under the head of pain and suffering as the amount of Rs.20,000/- awarded by the Tribunal appears to be on the lower side. Similarly, for the same reasons, a further sum of Rs.10,000/is awarded under the head of loss of amenities. Thus, the total additional compensation receivable by the appellant is fixed as Rs.3,31,912/-(2,95,920 + 16,000 + 10,000 + 10,000). 10. In such circumstances, these appeals are allowed with the following findings. (1) The award dated 15.02.2012 passed by the Motor Accident Claims Tribunal, Ottapalam in O.P.M.V No.506/2008 is MACA Nos.1481 & 1482 of 2012 11 modified by granting an additional compensation of Rs.92,800/(Rupees ninety two thousand and eight hundred only) and the 2[nd] respondent is directed to deposit the entire amount of compensation with interest at the rate as ordered by the Tribunal and proportionate cost within a period of three months from the date of receipt of copy of this judgment. (2) The award dated 15.02.2012 passed by the Motor Accident Claims Tribunal, Ottapalam in O.P.(MV) No.512/2008 is hereby modified by granting an additional compensation of Rs.3,31,920/- (Rupees three lakhs thirty one thousand nine hundred and twenty only) and the 2[nd] respondent is directed to deposit the said amount along with interest at the rate as ordered by the Tribunal and proportionate cost within a period of three months from the date of receipt of a copy of this judgment. Sd/- ## **ZIYAD RAHMAN A.A. JUDGE** rpk