Subramanian v. Sidheeq, Ahamed Kabeer & The Oriental Insurance Co. Ltd.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH THURSDAY, THE 27TH DAY OF JUNE 2013/6TH ASHADHA, 1935 MACA.No. 1232 of 2010 ( ) -------------------------- AGAINST THE AWARD IN OPMV 3/2007 of M.A.C.T OTTAPPALAM DATED 24-03-2010 APPELLANT/PETITIONER: ---------------------------------------------- SUBRAMANIAN,31 YEARS, S/O.CHANGAN, KOTTANCHERRY HOUSE, MUKKOOTTA CHALISSERY, OTTAPALAM TALUK. BY ADVS.SMT.T.D.RAJALAKSHMI SRI.R.SREEHARI RESPONDENTS/RESPONDENTS: ---------------------------------------------------- 1. SIDHEEQ,S/O.UMMER,43 YEARS, MELETHIL HOUSE, KADUKASSERY POST, THALI THRICHUR, DISTRICT, PIN 680 585. 2. AHAMED KABEER,S/O.ABOOBACKER, THOTTUMOOCHIKKAL HOUSE, KADUKASSERY, POST THALI THRISSUR DISTRICT, PIN 680 585 3. THE ORIENTAL INSURANCE CO.LTD., NO.2, KPN SHOPPING COMPLEX, OPP.THIRUVAMPADI TEMPLE, SHORNUR ROAD, THRISSUR 680 001. R1 BY ADV. SRI.P.JAYARAM R3 BY ADV. SRI.P.V.JYOTHI PRASAD THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 27-06-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: AV ## **THOMAS.P. JOSEPH, J** ----------------------------------------------------- M.A.C.A. No. 1232 OF 2010 ----------------------------------------------------Dated this the 27[th] day of June, 2013 ## J U D G M E N T This appeal arise from the award dated 24.03.2010 in O.P (M.V) No.3 of 2007 of the Motor Accidents Claims Tribunal, Ottapalam (for short 'the Tribunal'). The appellant was hit by an autorikshaw driven by the first respondent, belonging to the second respondent and insured with the third respondent on 24.10.2006. The Tribunal found that the accident occurred due to the negligence of the first respondent and awarded a lump sum of 4,000/- as compensation without going into various₹ heads under which claim was made. Accepting contention of the third respondent regarding violation of the policy condition, it was allowed to recover the amount from the second respondent after payment to the appellant. The appellant is aggrieved by the quantum of compensation and has preferred the appeal. 2. The learned counsel for the appellant contends that the Tribunal has not considered the injuries suffered by the appellant in the correct perspective. Even the monthly income of the appellant was not fixed to award loss of earnings. Compensation paid is low, it is argued. MACA.No.1232/10 2 3. The learned counsel for the second respondent contended placing reliance on the decision in [ **New India Assurance Co.Ltd. v. Balakrishnan (2011 (4) KLT 412** )] that merely for the reason of the first respondent not having a badge at the relevant time, the Tribunal should not have allowed the third respondent to recover the amount paid from the second respondent. It is argued that though the second respondent has not preferred any appeal against that part of the award allowing the third respondent to realise the amount from the second respondent, this court can exercise the power under Rule 33 of order XLI of the Code of Civil Procedure (for short 'the Code') and set right the mistake committed by the learned Tribunal. Reliance is placed on decisions in **[New India Assurance Co. Ltd. v. Pathumma (1986 KLT 553)]** and [ **Velunni v. Vellakutty (1989 (2) KLT 227)]** . 4. The learned counsel for the third respondent contended that compensation awarded is reasonable and require no interference. It is further contended that in so far as the second respondent has not challenged that part of the award which went against him, this court is not justified in interfering with that part of the award. MACA.No.1232/10 3 5. The first question for consideration is whether the appellant is entitled to get enhanced compensation? He was aged 28 years and self employed at the relevant time. Though he claimed that he was earning .4,000/- per month, no evidence₹ was adduced. The Tribunal has not fixed the monthly income. Having regard to the age of the appellant and wages payable to the labourers during the relevant time, monthly income is fixed as .2,000/-. ₹ 6. Paragraph 7 of the award refers to the injuries suffered by the appellant. Ext.A6 is the copy of wound certificate and A7 is the discharge card. He was admitted in the hospital on 28.10.2006 and discharged on 29.10.2006. He suffered injury over the right upper incisor tooth and lacerated injury over the right index finger. The learned counsel has given me a copy of Ext.A6 to contend that the Tribunal has omitted to mention that a tooth was missing. I find from the copy of Ext.A6 that it is specifically mentioned therein that at the time of examination on 28.10.2006 the tooth of the appellant was found missing. 7. The learned counsel for the respondent contended that missing of the tooth is not connected to the injury suffered. I am however, not inclined to accept that argument. For, it is seen MACA.No.1232/10 4 that the appellant has suffered injury over the right upper incisor. Hence missing of the tooth seen by the Medical Officer on 28.10.2006 can be referred to the injury the appellant suffered in the accident. 8. It is seen that the learned Tribunal has simply awarded a lump sum of .4,000/- as compensation. Though the in-patient₹ treatment of the appellant was only for a day, it is likely that he had to undergo outpatient treatment even after in-patient treatment. It is possible that the appellant may not have been able to work for 15 days. Loss of earnings payable comes to ₹.1,000/-. That is allowed. Ext.A6 series are medical bills for ₹.2,529/- produced by the appellant. Some of those bills are dated 10.7.2007, 8.12.2007 and 15.10.2008. Those bills were rejected by the Tribunal for the reason that those bills are long after the accident on 24.10.2006. Assuming so, it is not as if the appellant is not entitled to get treatment expenses. That he had to undergo treatment is an admitted fact. Hence he is entitled to be compensated. Having regard to the nature of injuries suffered and the period of treatment, .3,000/- is allowed as treatment₹ expenses. .250/- is allowed as transport charges. Though for a₹ day, the appellant had to undergo in-patient treatment. .150/- is₹ MACA.No.1232/10 5 allowed towards by-stander's expenses. .500/- is allowed as₹ damage to clothing and article. 9. What remains is general damages payable to the appellant. I referred to the injury which include missing of tooth. Considering the pain and suffering undergone, .2,500/- is₹ allowed on that count. 10. The learned counsel for the appellant submitted that the tooth was replaced. Even then, an artificial tooth would cause some inconvenience to the enjoyment of amenities of life. Hence ₹.2,000/- is allowed on that count. Total compensation payable to the appellant come to .9,400/-. Less .4,000/- awarded by the₹ ₹ Tribunal, additional compensation comes to ₹.5400/-. That amount shall carry interest at the rate of 8% per annum as awarded by the Tribunal from the date of application till realisation. 11. Now the next question is whether this court, in this appeal can interfere with finding of the Tribunal that the third respondent is entitled to recover the amount from the second respondent after payment of the same to the first respondent ? The decisions in **[New India Assurance Co. Ltd. v. Pathumma (1986 KLT 553)]** and [ **Velunni v. Vellakutty** MACA.No.1232/10 6 **(1989 (2) KLT 227)]** only say that when this court is entertaining an appeal from the award, it is open to this court to invoke the provisions of Order XLI of the Code. In [ **Velunni v. Vellakutty (1989 (2) KLT 227)]** , the power under Rule 33 of Order 41 of the Code was found to be exercisable . 12. The question is not whether that power is available to this court while considering the appeal. The question is whether that power should be exercised on the facts of this case. In [ **Thuravoor Grama Panchayat v. Peter Jerry and others (2012 (2) KHC 405** )] this court held that Rule 33 of Order XLI is to be read along with Rule 4 of Order XLI of the Code and that exercise of power under Rule 33 arises when, to grant relief to the appellant it become necessary to interfere with the finding entered by the trial court and otherwise, there is the possibility of conflicting findings and decrees. Rule 33 of Order XLI, I am unable to understand as permitting to interfere in favour of a respondent who could have preferred an appeal against that part of the decree or order against him but failed to do it for whatever reasons it had. 13. In this case, the question arising in the appeal preferred by the appellant is only whether he is entitled to get enhanced MACA.No.1232/10 7 compensation. To decide that question, it is not necessary to interfere with the finding entered by the Tribunal as regards right of the third respondent to realise the amount from the second respondent after payment of the compensation to the appellant. Even if this court allows the appeal and grants enhanced compensation, there will be no conflict with the finding entered by the Tribunal so far as contractual obligation of the respondents 2 and 3 is concerned. Hence, the power under Rule 33 of Order XLI of the Code cannot be exercised in this case. 14. Even otherwise, I am not inclined to think that the power should be exercised in this case. It is not as if the second respondent, if aggrieved by the decision of the Tribunal that there is violation of the policy condition and hence the third respondent is entitled to pay and recover the amount from the second respondent could not prefer an appeal. For reasons better known to the second respondent, he has either failed or refused to prefer an appeal. 15. It follows that the appellant is entitled to get additional compensation to the tune of .5,400/- with interest at the rate of₹ 8% per annum from the date of application till realisation. On payment, the third respondent can recover the said amount also MACA.No.1232/10 8 from the respondents 1 and 2. Resultantly, the appeal is allowed in part as under : - i) In modification of the award dated 24.3.2010 in O.P(M.V).No.3 of 2007 of the Motor Accidents Claims Tribunal, Ottapalam the appellant is allowed to recover a further sum of .5,400/-₹ (Rupees Five Thousand and Four Hundred only) with interest at the rate of 8% per annum from the date of application till realisation from the respondents 1 to 3. - ii) The third respondent shall deposit the said amount in the Tribunal within two months from this day. - iii) It is made clear that so far findings of the Tribunal regarding violation of policy condition and the direction issued by it that the third respondent can recover the compensation paid to the appellant from respondents 1 and 2 stand, that direction will apply to the additional compensation awarded by this judgment as well. - iv) Parties are directed to suffer their costs in the appeal. Sd/- Sou. **THOMAS.P. JOSEPH, JUDGE.** // True copy //