Sijeesh Kumar v Abdul Azeez and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MRS. JUSTICE SOPHY THOMAS MONDAY, THE 1 [ ST ] DAY OF APRIL 2024 / 12TH CHAITHRA, 1946 ``` ``` MACA NO. 1037 OF 2014 ``` ``` AGAINST THE ORDER/JUDGMENT DATED 09.04.2013 IN OPMV NO.160 OF 2011 OF MOTOR ACCIDENT CLAIMS TRIBUNAL ,KOZHIKODE ``` ## **`APPELLANT/PETITIONER:`** ``` SIJEESH KUMAR AGED 35 YEARS S/O. KRISHNANKUTTY, RESIDING AT KAYAKKAL HOUSE, P.O.PAYIMBRA, KURUVATTOR(VIA), KOZHIKODE. BY ADVS. SRI.V.S.CHANDRASEKHARAN SMT.LEKSHMI SWAMINATHAN SRI.K.L.MOHANACHANDRAN ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1 ABDUL AZEEZ AGED 25 YEARS S/O. KUTTIYAMI, AGE NOT KNOWN, RESIDING AT H/NO.7, MUHAMMEDALI, S/O. KUNJOTHI, RESIDING AT POTTAPILAKKAL HOUSE, P.O.MANIPPURAM, KO, PALLIYEDATH HOUSE, P.O.KURUVATTOOR, KOZHIKODE. 2 SAMAROOQ AGED 19 YEARS S/O. ABDULSALEEM, RESIDING AT SHERIN MANZIL, ULARATHAYIL, PARAMBIL BAZAR, CHERUVATTA, KOZHIKODE. 3 THE NEW INDIA ASSURANCE COMPANY LTD. DIVISIONAL OFFICE-II, SHAFEER COMPLEX, OPP.YMCA, KANNUR ROAD, KOZHIKODE. BY ADVS. K.P.SUDHEER ADVOCATE SRI.P.JACOB MATHEW SRI.MATHEWS JACOB SR. ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 01.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` MACA NO.1037 OF 2014 2 ## **J U D G M E N T** ``` The appellant herein is the petitioner in ``` ``` OP(MV) No.160 of 2011 on the file of Motor ``` ``` Accidents Claims Tribunal, kozhikode, challenging ``` ``` the impugned award on the ground of inadequacy of ``` ``` compensation. ``` `2. On 5/4/2010 at about 6.30 am, while the` ``` appellant was riding a motorcycle from Payimbra to ``` ``` Ambalam, KL-07/AK 6582 stage carriage driven by the ``` ``` 2nd respondent in a rash and negligent manner, ``` ``` dashed against his motorcycle, and he was thrown ``` ``` down, and he sustained serious injuries leading to ``` ``` permanent disability. He was a 36 year old coolie ``` MACA NO.1037 OF 2014 3 ``` earning monthly income of Rs.9,000/-. He was ``` ``` hospitalized for 97 days, and he suffered much pain ``` ``` and agony and also financial loss. Though he ``` ``` approached the Tribunal claiming compensation of ``` ``` Rs.10 lakh, the Tribunal awarded only Rs.6,62,740/-, and hence this appeal. ``` **==> picture [412 x 13] intentionally omitted <==** ``` offending stage carriage. The 2nd respondent was ``` ``` its driver, and the 3rd respondent was its insurer. ``` ``` Respondents 1 and 2 remained exparte. The 3rd ``` ``` respondent insurer contested the case, but admitted ``` ``` the policy. According to the insurer, the 2nd ``` ``` respondent had no driving licence to drive the ``` MACA NO.1037 OF 2014 4 ``` stage carriage at the time of accident. Since there ``` ``` was violation of the policy conditions, they are ``` ``` not liable to indemnify its owner. ``` `4. In the appeal, respondents 1 and 3 entered` ``` appearance. Though service was complete on the 2nd ``` ``` respondent, none appeared for him. ``` `5. Heard learned counsel for the appellant and` ``` learned counsel for the 3rd respondent/insurer. ``` ``` 6. Learned counsel for the appellant is ``` ``` challenging the award mainly on the ground of ``` ``` inadequacy of compensation. The appellant was a 36 ``` ``` year old coolie earning monthly income of ``` ``` Rs.9,000/-, but learned Tribunal fixed his notional ``` MACA NO.1037 OF 2014 5 ``` income at Rs.4,000/- per month. Though there is no ``` ``` document to prove his income, he would rely upon ``` ``` the decision Ramachandrappa v. Manager, Royal ``` ``` Sundaram Alliance Insurance Company Limited [AIR ``` ``` 2011 SC 2951] ,to say that even a coolie worker in ``` ``` the year 2010, was eligible to get his notional ``` ``` income fixed @ Rs.7,500/-. Relying on that decision ``` ``` this Court is inclined to fix his notional income ``` ``` @ Rs.7,500/-per month. ``` ``` 7. Learned Tribunal assessed loss of income for ``` ``` 8 months @ Rs.4,000/- per month. Since this Court ``` ``` has fixed his notional income @ Rs.7,500/-, he is ``` ``` eligible to get Rs.60,000/-(7,500x8). After ``` MACA NO.1037 OF 2014 6 ``` deducting Rs.32,000/- already awarded, he is ``` ``` entitled to get the balance amount of Rs.28,000/- ``` ``` as enhanced compensation, towards loss of earning. ``` ``` 8. Towards pain and suffering, learned Tribunal ``` ``` awarded Rs.25,000/- against his claim of ``` ``` Rs.40,000/-. The appellant had sustained fracture ``` ``` acetabulam right, fracture shaft of right femur, ``` ``` fracture sub trochanteric right, fracture left clavicle, fracture both bone right leg and ``` ``` lacerated wound on right eyebrow and scalp, and he ``` ``` was admitted in hospital for 97 days. Considering ``` ``` that fact, this Court is inclined to give enhancement of Rs.5,000/-, towards pain and ``` MACA NO.1037 OF 2014 7 ``` suffering. ``` `9. Learned counsel for the appellant would say` ``` that, the appellant had suffered permanent ``` ``` disability of 63%, as seen from Exhibit C1 ``` ``` disability certificate issued by the medical board ``` ``` attached to the Medical College Hospital, Kozhikode. The certificate shows that, the ``` ``` appellant was having partial ankylosis of right hip ``` ``` and knee, and 3 inch shortening of right lower ``` ``` limb. His percentage of permanent disability was ``` ``` assessed as 63%. His occupational disability was ``` ``` not assessed by the medical board. Moreover, it is ``` ``` not mentioned in that certificate the permanent ``` MACA NO.1037 OF 2014 8 ``` disability mentioned as 63% was with respect to his ``` ``` whole body. It is true that, the appellant had ``` ``` suffered shortening of his lower limb by 3 inch and ``` ``` partial ankylosis of right hip and knee. That does ``` ``` not mean that, he was not able to do any job at ``` ``` all, and the disability mentioned in Ext.C1 cannot ``` ``` be taken as his occupational disability, as the ``` ``` certificate is silent about his occupational ``` ``` disability. Learned counsel for the appellant would ``` ``` say that, since he was aged below 40, 40% addition, ``` ``` towards future prospects had to be given as the ``` ``` disability suffered was 63%. Since it is not ``` ``` mentioned in Ext.C1, that the permanent disability ``` MACA NO.1037 OF 2014 9 ``` mentioned therein was with respect to his whole ``` ``` body, and percentage of occupational disability is ``` ``` not mentioned therein, this Court is not inclined to give an addition of 40%, towards future ``` ``` prospects as claimed by the appellant. So the ``` ``` compensation for permanent disability of 63% as ``` ``` stated in Ext.C1, and accepted by the Tribunal can ``` ``` be re-calculated as Rs.8,50,500/- ``` ``` (7500x12x15x63/100). After deducting Rs.4,53,600/- ``` ``` already awarded by the Tribunal, the appellant is ``` ``` entitled to get Rs.3,96,900/- as enhancement in ``` ``` disability compensation. ``` ``` 10. Towards loss of amenities, learned Tribunal ``` MACA NO.1037 OF 2014 10 ``` awarded Rs.25,000/-. Ext.C1 certificate show that, ``` ``` the appellant suffered partial ankylosis of right ``` ``` hip and knee, and shortening of right lower limb by ``` ``` 3 inches. The shortening of leg might have ``` ``` resulted in limping also. Considering that fact, ``` ``` this Court is inclined to award Rs.15,000/- more, ``` ``` towards loss of amenities. ``` ``` 11. The compensation awarded under all other ``` ``` heads seems to be reasonable, and hence it needs no ``` ``` modification. ``` ``` 12. The enhanced compensation awarded in this ``` ``` appeal is stated in the table below:- ``` MACA NO.1037 OF 2014 11 |Head of claim|Amount<br>awarded by<br>the Tribunal|Amount<br>awarded in<br>appeal|Difference to be<br>drawn as enhanced<br>compensation| |---|---|---|---| |Loss of earning|32,000/-<br>(4,000x8)|60,000/-<br>(7,500x8)|28,000| |Pain and<br>suffering|25,000|+5,000|5,000| |Loss of future<br>earning power|4,53,600|8,50,500|3,96,900| |Loss of<br>amenities|25,000|+15,000|15,000| |TOTAL 4,44,900/-|||| ``` 13. So the appellant is entitled to get ``` ``` enhanced compensation of Rs.4,44,900/- (28,000+ ``` ``` 5,000+3,96,900+15,000), towards enhanced ``` ``` compensation. ``` ``` 14. The 3rd respondent/insurer would submit that, the 2 nd respondent driver had no driving ``` MACA NO.1037 OF 2014 12 ``` licence, and so he was charged under Section 3(1) ``` ``` r/w 181 of Motor Vehicles Act also. Ext.B2 copy of ``` ``` charge sheet substantiates that fact. Learned Tribunal directed the 3 rd respondent insurer to pay ``` ``` the award amount initially to the appellant, and then to recover the same from the 1 st respondent RC ``` ``` owner. Though the 1st respondent appeared in the ``` ``` appeal he has not made any challenge against the ‘pay and recover’ order given to the insurer. Learned counsel for the 3 rd respondent is seeking ``` ``` the same direction from the appellate court also. ``` **==> picture [412 x 14] intentionally omitted <==** ``` driving licence as seen from Ext.B2 charge sheet ``` MACA NO.1037 OF 2014 13 ``` there was violation of the policy conditions so the ``` ``` ‘pay and recover’ order given to the 3 rd respondent ``` ``` by the Tribunal is retained, with respect to the ``` ``` enhanced compensation also. ``` ``` 16. The 3rd respondent/insurer is directed to ``` ``` deposit the enhanced compensation in the bank ``` ``` account of the appellant, with 8% interest per ``` ``` annum, from the date of petition till the date of ``` ``` deposit (excluding 263 days of delay in filing the ``` ``` appeal) within a period of two months from the date ``` ``` of receipt of a copy of this judgment. The deposit ``` ``` must be in terms of the directives issued by this ``` ``` Court in Circular No.3 of 2019 dated 06/09/2019 and ``` MACA NO.1037 OF 2014 14 ``` clarified in O.M.No.D1/62475/2016 dated 07/11/2019 ``` ``` after deducting the liabilities, if any, of ``` ``` appellant towards Tax, balance court fee and legal ``` ``` benefit fund. ``` ``` 17. The 3 rd respondent is at liberty to recover ``` ``` the said amount from the 1 st respondent registered ``` ``` owner and his assets. ``` ``` The appeal is allowed to the extent as above, ``` ``` and no order is made as to costs. ``` ``` Sd/- ``` ## **SOPHY THOMAS,** ## **JUDGE** ska