Thampi K. v. Sukumaran

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE & THE HON'BLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** **WEDNESDAY, THE 8TH DAY OF AUGUST 2012/17TH SRAVANA 1934** **MACA.No. 2831 of 2008 ( ) -----------------------------------OPMV.1219/2002 of MOTOR ACCIDENTS CLAIMS TRIBUNAL, IRINJALAKUDA .........** ## **PETITIONERAPPELLANT(S):** **-----------------------------------------** **THAMPI.K, S/O. KOLANGARA CHATHUKUTTY, KUZHIKATTUSSERY POSTE, THRISSUR DISTRICT.** **BY ADV. SRI.T.N.MANOJ** ## **RESPONDENT(S)/RESPONDENTS:** **------------------------------------------------** **1. SUKUMARAN, S/O. BALAKRISHNAN VAIDHYAR, SAPNA, THIRUTHIYAD, NEAR AZHAYAMKUDY DEVI TEMPLE, KASBA VILLAGE, CALICUT.** **2. THE MANAGING PARTNER, VIMALA SMARAKA PHARMACY, PERINTHANMANNA MALAPPURAM DISTRICT.** **3. THE MANAGER, NEW INDIA ASSURANCE COMPANY LTD., MALAPPURAM BRANCH UPHIL CATHOLIC CENTRE.** **BY ADV. SMT.ANU SIVARAMAN BY ADV. SMT.P.V.ASHA BY ADV. SRI.M.JACOB MURICKAN** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 08-08-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **tss** ## **PIUS C. KURIAKOSE & A.V.RAMAKRISHNA PILLAI, JJ.** -------------------------------------------------------------- MACA. No. 2831 of 2008 ----------------------------------------------Dated this the 8[th] day of August, 2012 ## **J U D G M E N T** ## **Ramakrishna Pillai, J.** The appellant a 42 year old Second Grade Overseer in the Irrigation Department met with an accident on 18-72002 while he was riding his motorcycle which collided with an Omni Van coming from the opposite direction. The learned Tribunal found negligence on the first respondent who was at the wheels of the Omni Van. However, finding that the first respondent was not holding any valid driving license at the relevant time the third respondent who admitted the policy of the offending vehicle was exonerated from making compensation. In this appeal, the appellant is challenging the finding of the learned Tribunal exonerating the third respondent Insurance Company as well as the adequacy of the compensation awarded to him. 2. We have heard the learned counsel for the appellant, MACA.2831/08 -2- the learned counsel for the first respondent and the learned counsel for the third respondent Insurance Company. The impugned award was also perused. 3. Medical records reveal that the appellant was admitted to hospital with symptoms of cerebral oedema, minimal subarachnoid haemorrhage as well as fracture of the temporal bone. These were confirmed as per CT scan. He was hospitalised for a period of 29 days. The learned Tribunal has awarded a sum of `12,000/- as compensation for pain and suffering. Considering the nature of injuries sustained by the appellant as well as the period of hospitalisation we award an additional sum of `3000/- under that head. 4. We notice that no amount has been awarded by the Tribunal towards loss of amenities in life during the period of treatment and convalescence. Undoubtedly the appellant might have been forced to take rest on account of the MACA.2831/08 -3- injuries sustained. He has to be compensated for the loss of amenities during that period. We award to the appellant a sum of `5000/- under that head. 5. According to the appellant, he was earning a monthly salary of `8191/- he being a Second Grade Overseer in the Irrigation Department. To prove the same he has produced the salary certificate before the Tribunal. But it was not admitted in evidence. Now the appellant has produced the salary certificate and the same is allowed to be marked as Ext.A9. From Ext.A9 we see that the admissible salary of the appellant is `7800/-. Though the appellant has not produced any evidence to show that he was on leave, it is only reasonable to presume that he might not have been able to go for work at least for a period of one month and the learned Tribunal has awarded a sum of `5000/- towards loss of earning. We find that the appellant is entitled to get an additional sum of `2800/- towards loss MACA.2831/08 -4- of earning for one month. 6. As noticed above the appellant was hospitalised for a period of 29 days. But no amount was awarded by the learned Tribunal towards bystander's expenses. As the accident was in the year 2002 he is entitled to get bystander's expenses at the rate of `200/- per day. Thus we award to the appellant a sum of `5800/- towards bystander's expenses. 7. The learned counsel for the appellant relied on Ext.A5 medical certificate issued by a Medical Board which states that the appellant is having a residual disability of 30%. But going through the medical certificate we notice that the certificate was issued by the Medical Board taking into account another injury also sustained by the appellant in October 2002. We cannot see any proper nexus between the accident and the injuries sustained by the appellant in the month of October 2002. So we are not inclined to MACA.2831/08 -5- accept the percentage made mention of in Ext.A5. Taking into account the fact that the appellant had sustained a head injury it is only reasonable to hold that the same would cause some discomfort to the appellant at least for few more years. He has to be compensated for the same. In the absence of any convincing evidence regarding the exact percentage of disability, we award to the appellant `10,000/- towards continuing discomfort on a rough and ready estimate. 8. Thus in total the appellant is entitled to get an additional sum of `26,600/- over and above what has been awarded by the Tribunal, which will carry interest at the rate of 7% per annum from the date of petition till realisation. 9. It is in evidence that the first respondent who was the driver of the mini van was not holding any valid driving license at the time of the accident. The learned Tribunal on MACA.2831/08 -6- the basis of absence of driving license exonerated third respondent Insurance Company from the array of parties. It is well settled after the decision of the apex court in National Insurance Co. Ltd. v. Swaran Singh, 2004(1) KLT 781 (SC) that unless there is convincing evidence to show that the absence of driving license itself has contributed to the accident which has to be proved by cogent evidence by the insurer, the insurer cannot be absolved of the liability of paying compensation to the innocent victims. Following the aforesaid decision we are of the view that this is a fit case where the third respondent Insurance Company should have been directed to pay the compensation, reserving the right to recover the same from the second respondent registered owner of the offending vehicle. Accordingly we direct the third respondent Insurance Company to pay the amount and recover the same from the registered owner after effecting the payment. MACA.2831/08 -7- The appeal is allowed and the impugned award shall stand modified as above ## **(PIUS C.KURIAKOSE, JUDGE)** ## **(A.V.RAMAKRISHNA PILLAI, JUDGE)** ksv/-