Smitha v. Abdullakkutty Chelakkal House; Manikandan s/o Velayudhan; The New India Assurance Co. Ltd.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. THURSDAY,THE 7[TH] DAY OF DECEMBER 2023/16TH AGRAHAYANA, 1945 ``` ## **`MACA NO. 889 OF 2012`** ``` OPMV 892/2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL, TIRUR ``` ## **`APPELLANT/PETITIONER:`** ``` SMITHA, D/O.VASU, AGED 29 YEARS, CHERUPARAMBIL HOUSE, PANTHAVOOR, ALANKODE, MALAPPURAM. ``` ``` BY ADVS. SRI.C.A.CHACKO SMT.C.M.CHARISMA ``` ## **`RESPONDENTS/RESPONDENTS:`** - `1 C.ABDULLAKUTTY CHELAKKAL HOUSE, PIDAVANNUR, ALANKODE P.O., MALAPPURAM-679585.` - `2 MANIKANDAN S/O.VELAYUDHAN, KARUVADI HOUSE, PANTHAVOOR, ALANKODE P.O., MALAPPURAM-679585.` - `3 THE NEW INDIA ASSURANCE CO.LTD. K.H.BUILDING, THAZHEPALAM, TIRUR, MALAPPURAM DISTRICT-676101 *THE FIRST RESPONDENT IS DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 7/2/2022 IN I.A 1/2022 BY ADV SMT.M.HEMALATHA` ## **`THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR`** ``` ADMISSION ON 07.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` M.A.C.A. No.889/2012 : 2 : ## JUDGMENT The appellant was the petitioner in OP(MV) No.892/2006 on the files of the Motor Accident Claims Tribunal, Tirur. 2. The said claim petition was submitted by her seeking compensation for the injuries sustained to her in a motor accident that occurred on 08.08.2006. According to the appellant, the accident occurred when she, along with some other persons, were travelling in an autorickshaw bearing registration No.KL10C-4853 through Manathadam-Kuttippala public road, due to the rash and negligent driving of the 2[nd] respondent, it capsized and she sustained serious injuries. The 1[st] respondent was the owner of the said vehicle and it was insured with the 3[rd] respondent. According to the appellant, she was 26 years old at the time of the accident, and was working as a computer operator with a monthly income of Rs.5,000/-. Consequent to the injuries, she sustained permanent disablement as well. The claim petition was submitted in such circumstances. M.A.C.A. No.889/2012 : 3 : 3. The 1[st] respondent filed a written statement contending that he had already transferred the ownership of the said vehicle on 02.08.2006 in favour of the 2[nd] respondent and he was not in possession and control of the said vehicle. The 2[nd] respondent did not contest the matter. The 3[rd] respondent filed a written statement admitting the coverage of policy in respect of the autorickshaw, but contended that the 2[nd] respondent was driving the vehicle without any valid driving licence. Therefore, they sought exoneration from the liability. They also disputed the quantum of compensation claimed. The claim petition was tried along with two other claim petitions which arose from the very same accident. 4. The evidence in this case consists of Exts.A1 to A21 from the side of the appellant, and Exts.C1 to C3 were marked, and from the side of the respondents, Exts.B1 and B2 were marked. 5. After the trial, the tribunal came to the conclusion that the accident occurred due to negligence on the part of the 2[nd] respondent in riding the motorcycle. It was also found that, as on the date of the accident, the vehicle stood registered in the name M.A.C.A. No.889/2012 : 4 : of the 2[nd] respondent and the 1[st] respondent was exonerated from liability. The tribunal further found that the 2[nd] respondent was not having valid driving licence to drive the autorickshaw and it was found that there was violation of policy conditions. The 3[rd] respondent insurance company was thus exonerated from the liability. The quantum of compensation was fixed as Rs.1,26,700/- and the same was directed to be deposited by the 2[nd] respondent with interest at the rate of 9% per annum from the date of petition till realisation. This appeal is submitted by the appellant in such circumstances seeking enhancement of the compensation. They also challenged the order exonerating the insurance company. 6. Heard Sri. C.A. Chacko, the learned counsel appearing for the appellant and Smt. M. Hemalatha, the learned counsel appearing for the 3[rd] respondent insurance company. 7. One of the contentions raised by the learned counsel for the appellant is with regard to the exoneration of the insurance company. It was pointed out that, even if the 2[nd] respondent was found to be not having driving licence, that would not enable the insurance company to get exoneration from the liability. I find M.A.C.A. No.889/2012 : 5 : some force in the said contention. As far as driving a vehicle without a driving licence is concerned, the same can only be a dispute between the insured and the insurer. Under no circumstances the same can have any impact on the claim put forward by the claimant, who is a third party, for the injuries sustained in a motor accident. The Court is under an obligation to ensure the speedy recovery of the compensation to the victim. Moreover, it is a well-settled position of law that when the question of violation of policy has been raised, the proper course to be adopted is to direct the insurance company to satisfy the award at the first instance and permit them to get the said compensation recovered, from the registered owner of the said vehicle. Therefore, the finding of the tribunal exonerating the insurance company was not at all legally sustainable and it is accordingly set aside. 8. The next aspect relates to the quantum of compensation. The appellant claimed to be a person working as a computer operator with a monthly income of Rs.5,000/-. The tribunal took the monthly income as Rs.3,000/- only, which appears to be on the lower side. This is particularly because, in M.A.C.A. No.889/2012 : 6 : Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd [(2011) 13 SCC 236], the Hon'ble Supreme Court was pleased to take the income of an ordinary worker, without any evidence, as Rs.4,500/- in respect of an accident occurred in the year 2004. Here, in this case, the accident was in the year 2006, and therefore, the monthly income of Rs.5,000/claimed by the appellant appears to be reasonable. The said amount is accepted. The physical disability sustained by the appellant is to the tune of 14%, which is certified by the Medical Board, and the same is already accepted by the tribunal. But the tribunal adopted the multiplier of 18, and since the appellant was 26 years old at the time of the accident. In the light of Sarla Varma v. Delhi Transport Corporatrion [2010(2)KLT 802 (SC)] the proper multiplier should have been 17. Thus, while reassessing the compensation for disability with the monthly income of Rs.5,000/- the amount would come to Rs.1,42,800/[5000x12x17x14%]. The amount already awarded by the tribunal under this head is Rs.90,720/- and thus, the additional amount would come to Rs.52,080/- under the head of the disability. M.A.C.A. No.889/2012 : 7 : 9. Consequent to the revision of monthly income, the appellant would be entitled to compensation for loss of income as well. The tribunal has awarded compensation under his head for a period of two months. Therefore, the additional amount receivable by the appellant under this head would come to Rs.4,000/-. Towards pain and suffering, the amount awarded by the tribunal is Rs.10,000/-. Considering the nature of injuries and the consequential disability, a further sum of Rs.10,000/- can be granted. However, no amount is seen awarded towards loss of amenities. Considering the physical disability suffered by the appellant and the consequences thereof, I deem it appropriate to grant an amount Rs.15,000/- under the said head. Thus the total additional compensation would come to Rs.81,080/[52080+4000+10000+15000] and the total compensation receivable by the appellant is to be thus refixed as Rs.2,07,780/[81080+126700]. In the light of the aforesaid observations and finding, this appeal is allowed. The award dated 30.05.2009 passed by the Motor Accident Claims Tribunal, Tirur, in OP(MV) No.892/2006 is hereby modified, by setting aside the finding of M.A.C.A. No.889/2012 : 8 : the tribunal exonerating the insurance company. The 3[rd] respondent insurance company is held liable to pay the compensation at the first instance and to get it recovered from the 2[nd] respondent by executing the award itself. The quantum of compensation is refixed as Rs.2,07,780/- (Rupees two lakhs seven thousand seven hundred and eighty only) and the 3[rd] respondent insurance company shall deposit the said amount along with interest at the rate as ordered by the tribunal with proportionate costs within a period of three months from the date of receipt of a copy of this judgment. Upon such deposit, it shall be open for the 3[rd] respondent to get the said amount recovered from the 2[nd] respondent. Sd/ZIYAD RAHMAN A.A. JUDGE ncd