SANOOP v THAHIRA MEHABOOB ANJILIKUZHY and The National Insurance Co. Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 26TH DAY OF MARCH 2021 / 5TH CHAITHRA, 1943** ## **MACA.No.1989 OF 2013** **AGAINST THE AWARD IN OPMV 781/2011 DATED 28-06-2013 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, KOTTAYAM** ## **APPELLANT/PETITIONER:** **SANOOP AGED 23 YEARS S/O SABU KUTTACHARAPARAMBIL HOUSE KANJIRAM (PO) THIRUVARPPU, KOTTAYAM** **BY ADVS. SRI.M.V.THAMBAN SRI.B.BIPIN SRI.R.REJI SMT.THARA THAMBAN** ## **RESPONDENTS/RESPONDENTS 1 TO 3:** **1 THAHIRA MEHABOOB AANJILIKUZHY, NATTASSERY S.H. MOUNT (PO), KOTTAYAM PIN 686001** **2 ANOOP S/O BRAHMANADDHAN ANU NIVS VELOOR (PO) PARAPPADOM, KOTTAYAM PIN-686501** **3 THE NATIONAL INSURANCE CO. LTD KOTTAYAM -686001** **R3 BY ADV. SMT.P.K.SANTHAMMA, SC** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 26.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA.No.1989 OF 2013 2 ## **`P.V.KUNHIKRISHNAN, J.`** ``` --------------------------------------- M.A.C.A. No. 1989 of 2013 ------------------------------------------ Dated this the 26[th] day of March 2021 ``` ## **`JUDGMENT`** ``` The appellant is the petitioner in O.P(M.V). No. 781/2011 on the file of the Motor Accidents Claims Tribunal, Kottayam. The above claim petition was filed under Section 166 of the Motor Vehicles Act. (Hereinafter the parties are mentioned in accordance to their rank before the Tribunal) ``` ``` 2. The short facts are like this: - On 11.12.2010, while the petitioner was travelling in a Car from Sabarimala to Kottayam and when the vehicle reached at Chennampally, it collided with a jeep and as a result of the same, he and other passengers travelling in the car sustained serious injuries. Immediately, the ``` MACA.No.1989 OF 2013 3 ``` petitioner was taken to the Medical College Hospital, Kottayam and undergone inpatient treatment there for twelve days. According to the petitioner, the accident occurred due to the rash and negligent driving of the car by the Second respondent. First respondent is the owner and 3[rd] respondent is the insurer of the car. ``` ``` 3. To substantiate the case, Exhibits A1 to A8 were marked on the side of the petitioner and Exhibits B1 to B4 were marked on the side of the respondents. PW1 is examined on the side of the petitioner and RW1 is examined on the side of the respondents. After going through the evidence and documents, the Tribunal found that the petitioner is entitled an amount of Rs.43,200/- (Rupees Forty Three Thousand and Two Hundred Only) with interest at the rate of 8.5% p.a., from the date of petition till realisation. The Tribunal found that since the car is owned by the 1[st] respondent ``` MACA.No.1989 OF 2013 4 ``` and driven by the 2[nd] respondent and it was used for hire, it amounts to violation of policy conditions. Therefore, the tribunal found that, 3[rd] respondent is not liable to pay the compensation. Hence, the Tribunal directed Respondent Nos. 1 and 2 to pay the compensation. Aggrieved by the same, this appeal is ``` `4. Heard the learned counsel for the petitioner` `and the learned counsel for the 3[rd] respondent. The learned counsel for the petitioner submitted that, the tribunal erred in exonerating the 3[rd] respondent from the liability. He contended that, there may be at least a direction to pay the compensation by the 3[rd] respondent, after giving them liberty to recover it from the 1[st] and 2[nd] respondent.` `5. The learned counsel for the 3[rd] respondent` `submitted that the petitioner has no locus standi to` MACA.No.1989 OF 2013 5 ``` argue about the exoneration of the insurance company, because the 1[st] respondent has not challenged that part of the award. Therefore, he contended that, this court may not pass any order directing the insurance company to pay and thereafter recover the amount from the 1[st] respondent. ``` ``` 6. Admittedly, there is violation of the policy conditions and therefore, the Tribunal directed respondent Nos. 1 and 2 to pay compensation. In the light of Section 149(2) of the Motor Vehicles Act, the Insurance Company is liable to pay the compensation. Liberty can be given to the insurance company to recover the amount from the 1[st] and 2[nd] respondents. This position is settled by several decisions of this Court and Apex Court. ``` `7. The learned counsel for the appellant` `submitted that the quantum of compensation fixed by` MACA.No.1989 OF 2013 6 ``` the Tribunal is too low. The learned counsel submitted that the petitioner sustained very serious injuries. The learned counsel also submitted that the Tribunal fixed the monthly income of the petitioner as Rs.5,000/-. The accident happened in the year 2010. The learned counsel submitted that the claim of the petitioner is that he was getting Rs.6,000/- per month. ``` `8. In the light of the decision of the Apex Court in` ``` Ramachandrappa v. The Manager, Royal Sundaram [2011(13) SCC 236], the monthly income can be safely fix as Rs.6,000/-. If that is taken, towards loss of earnings the petitioner is entitled an enhanced compensation of Rs.3,000/-. ``` ``` 9. Then the learned counsel submitted that towards pain and sufferings and towards loss of amenities, the amount awarded by the Tribunal is too low. Considering the serious nature of the injuries and ``` MACA.No.1989 OF 2013 7 ``` also considering the period of treatment, I think that another amount of Rs.5,000/- (Rupees Five Thousand Only) can be given for pain and sufferings and an additional amount of Rs.10,000/- (Rupees Ten Thousand Only) can be awarded towards loss of amenities. ``` ``` 10. Therefore, the enhanced compensation entitled by the appellant can be summarised like this:- ``` ``` HeadAmount Loss of earningsRs.3,000/- Loss of amenitiesRs.10,000/- Pain and sufferingsRs.5,000/- TotalRs.18,000/- ``` ``` 11.The appellant is entitled interest for the above ``` ``` amount @ 8.5% p.a. from the date of petition till realisation. ``` ``` Therefore, this appeal is allowed in part. The impugned award is modified and the appellant is ``` MACA.No.1989 OF 2013 8 ``` entitled an enhanced compensation of Rs.18,000/- (Rupees Eighteen Thousand Only) with interest at the rate of 8.5% p.a, from the date of petition till realisation. The 3[rd] respondent is directed to pay the compensation awarded by the tribunal and the enhanced compensation awarded by this Court with interest. The 3[rd] respondent is at liberty to recover the entire compensation with interest from respondent Nos. 1 and 2. ``` ``` SD/- ``` ``` P.V.KUNHIKRISHNAN ``` ``` JUDGE ``` ``` Avs/LU ```