Shiju N.V. v. Muhammedali, Abdul Jaleel & United India Insurance Company Limited

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **THURSDAY, THE 21[ST] DAY OF JULY 2022 / 30TH ASHADHA, 1944** **MACA NO. 405 OF 2014** **AGAINST THE AWARD DATED 05.04.2013 IN OP(MV)NO.535/2012 OF** **PRINCIPAL MOTOR ACCIDENT CLAIMS TRIBUNAL, KOZHIKODE** ## **APPELLANT/PETITIONER :** **SHIJU.N.V., AGED 38 YEARS, S/O. VARKEY, RESIDING AT NEELAMPARAMBIL HOUSE, P.O.PUTHUPPADI, KUPPAYAKODE, KODENCHERI, KOZHIKODE.** **BY ADVS. SRI.V.S.CHANDRASEKHARAN SRI. M.V. DAS SMT.LEKSHMI SWAMINATHAN** ## **RESPONDENTS/RESPONDENTS :** **1 MUHAMMEDALI, AGED 25 YEARS, S/O. KUNJOTHI, RESIDING AT POTTAPILAKKAL HOUSE, P.O.MANIPPURAM, KODUVALLY, KOZHUKODE. 2 ABDUL JALEEL, AGED 18 YEARS, S/O. ABDULLA, RESIDING AT ANAPPARAKKAL HOUSE, P.O.MANIPPURAM, KODUVALLY, KOZHIKODE.** - **3 UNITED INDIA INSURANCE COMPANY LIMITED, GROUND FLOOR, KDC, BANK BUILDING, MAIN ROAD, KUNNAMNANGALAM, KOZHIKODE-673050** **R3 BY ADV SMT.P.K.SANTHAMMA** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 21.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA No.405 of 2014 **==> picture [28 x 8] intentionally omitted <==** ## **MACA No.405 of 2014** ## **--------------------------------------------------** ## **J U D G M E N T** This appeal arises out of award dated 05.04.2013 in O.P.(MV)No.535 of 2012 on the file of the Principal Motor Accidents Claims Tribunal, Kozhikode. The appellant herein is the petitioner before the Tribunal. Respondents herein are the respondents before the Tribunal. 2. Heard the learned counsel for the appellant and the learned Standing Counsel appearing for the insurance company. 3. Brief facts of the case are as follows; The appellant, who met with an accident on 22.06.2011 at about 9.30 p.m., while he was riding his MACA No.405 of 2014 **==> picture [28 x 8] intentionally omitted <==** motorcycle from Thamarassery to Kozhikode, had filed petition under Section 166 of the Motor Vehicles Act, claiming compensation to the tune of Rs.1,00,000/- on the allegation that he was hit down by another motorcycle bearing Registration No.KL-11-X-4208 driven by the second respondent in a rash and negligent manner. 4. R1 and R2 were set ex parte by the Tribunal. 5. R3 filed written statement admitting the policy to the vehicle, but denied the liability. Quantum of compensation also was disputed. 6. The Tribunal marked Exts.A1 to A7 on the side of the appellant and Exts.B1 and B2 were marked on the side of the respondents. Finally, Rs.81,648/- was granted by the Tribunal along with 8% interest directed to be deposited by the third respondent with right of MACA No.405 of 2014 ..4.. recovery from the owner of the vehicle on finding violation of policy conditions. 7. The learned counsel for the appellant would urge that the disability accepted by the Tribunal in this case is on lower side. According to him, as per certificate dated 16.10.2012 issued by Dr.Mahendra Varma, it was certified that the permanent physical disability due to loss of the 4[th] toe with additional points for pain and partial loss of sensation is total 12%. However, the Tribunal fixed the same at 3%. Highlighting the injuries and loss of the 4[th] toe, the learned counsel pressed for accepting the disability as such or a marginal increase in the percentage of disability. 8. The learned counsel for the insurer vehemently opposed the same on the contention that the MACA No.405 of 2014 **==> picture [28 x 8] intentionally omitted <==** said certificate was issued by a solitary doctor and the appellant failed to examine the doctor to prove 12% disability as assessed and therefore, it is not fair to fix 12% disability. 9. In this matter, while addressing the issue of disability, reference to the injuries noted in the wound certificate produced as Ext.A2 is necessary. The serious injury noted in Ext.A2 is fracture neck of 5[th] metatarsal. Subsequently, the same had been removed is the observation to be gathered from Ext.A5 series of documents inclusive of treatment certificate, discharge summary and the disability certificate given emphasis by the learned counsel for the appellant. 10. Prima facie, it appears that the disability of 12% certified by Dr.Mahendra Varma is on higher side. MACA No.405 of 2014 ..6.. Having considered the loss of 4[th] toe, I am of the view that 7% disability can be accepted to re-visit the loss of disability income. 11. In this case, the appellant, who was aged 38 years at the time of accident had claimed his monthly income at Rs.15,000/- being a Merchant. No documents produced to substantiate the said contention and finally, the Tribunal fixed the monthly income as Rs.4,000/- per month. 12. Applying the ratio in [(2011) 13 SCC 236], **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd.** , Rs.8,000/- to be fixed as the monthly income in this case, since the accident is of the year 2011. Accordingly, the monthly income is re-fixed as Rs.8,000/- per month. The multiplier is not in dispute. Therefore, loss of disability income is re-calculated as under; MACA No.405 of 2014 **==> picture [28 x 8] intentionally omitted <==** 8,000x12x15x7%=1,00,800/- Out of which, Rs.21,600/-was granted by the Tribunal. Rs.1,00,800-21,600= **Rs.79,200/-** more is granted under the head loss of disability income. 13. The Tribunal granted loss of earnings for a period of two months and the same is enhanced at the rate of Rs.8,000/-. The same would come to Rs.16,000/(8,000x2). Out of which, Rs.8,000/- was granted by the Tribunal and the balance **Rs.8,000/-** more is granted under this head. 14. The Tribunal granted Rs.15,000/- under the head pain and sufferings. Therefore, **Rs.5,000/-** more is granted under this head. The Tribunal granted Rs.5,000/under the head loss of amenities. Therefore, **Rs.5,000/-** more is granted under this head. MACA No.405 of 2014 **==> picture [28 x 8] intentionally omitted <==** 15. In the result, this appeal stands allowed. It is ordered that the appellant is entitled to get total compensation Rs.1,78,848/-. Out of which, Rs.81,648/was granted by the Tribunal and the balance **Rs.97,200/-** (Rupees Ninety Seven Thousand Two Hundred only) is granted as additional compensation along with the same rate of interest allowed by the Tribunal and the entire amount shall be paid by the insurer. Since it is noticed that the appellant valued the claim for Rs.1,00,000/- and paid court fee for the said sum alone. The appellant is liable to pay court fee to the tune of Rs.78,848/- granted as enhanced compensation. 16. In this matter, based on Ext.B1 charge alleging commission of offence under Section 3(1) read with Section 138 of Motor Vehicles Act, it was found by MACA No.405 of 2014 **==> picture [28 x 8] intentionally omitted <==** the Tribunal that there was violation of policy conditions, since the second respondent driven the motorcycle at the time of accident without a valid driving licence. Therefore, recovery right was granted by the Tribunal. Accordingly, recovery right is granted in favour of the insurer insofar as the entire amount inclusive of the amount granted as enhanced compensation along with interest. 17. Therefore, insurance company is directed to deposit Rs.790/- as additional court fee in the name of MACT by a separate cheque and deposit the remaining amount in the name of the appellant, within two months from today and on deposit, the appellant is at liberty to release the same. The insurer is entitled to get recovery of the amount granted as additional compensation also along MACA No.405 of 2014 ..10.. with the interest thereof from the first respondent, the owner of the vehicle, on depositing the same in the name of the appellant as directed. Sd/- **A.BADHARUDEEN, JUDGE** rkj