The United India Insurance Co. Ltd. v. V. Mani

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 6[TH] DAY OF OCTOBER 2021 / 14TH ASWINA, 1943** **MACA NO.1770 OF 2009** **AGAINST THE AWARD IN OP(MV) NO.2299/2002 OF IST ADDITIONAL MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE** ## **APPELLANT/3RD RESPONDENT:** **THE UNITED INDIA INSURANCE CO. LTD. REP.BY ITS ASST.MANAGER, REGIONAL OFFICE, SHARANYA, HOSPITAL ROAD, ERNAKULAM.** **BY ADV SMT.RAJI T.BHASKAR** ## **RESPONDENTS/PETITIONER & RESPONDENTS 1 & 2:** **1 V.MANI S/O.KRISHNAN, AGED ABOUT 38 YEARS, RESIDING AT AKKIRIPARAMBU HOUSE, P.O.PARAPPANPOYIL, VIA.THAMARASSERY, KOZHIKODE. 2 C.K.MOHAMMED S/O.KUTTI HASSAN RESIDING AT THIRUTHIYAD, KOZHIKODE.** **3 LINESH S/O.LOHITHAKSHAN NAIR** **AGED ABOUT 31 YEARS, RESIDING AT ANAPPARAKKAL HOUSE, P.O.RAROTH, KOZHIKODE.** **RESPONDENTS 2 AND 3 ARE DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT VIDE ORDER DATED 14.9.2021 IN I.A.NO.2/2020.** **BY ADV SMT.K.V.RESHMI** **THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 06.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** MACA 1770/2009 2 ## **JUDGMENT** Dated this the 6[th] day of October, 2021 The appellant was the third respondent in O.P.(M.V.) No.2299 of 2002 on the file of the Ist Additional Motor Accidents Claims Tribunal, Kozhikode. The respondent in the appeal was the petitioner before the Tribunal. Even though the appellant had impleaded respondents 1 and 2 as respondents 2 and 3 before this Court, at the instance of the appellant, the said respondents were deleted from the party array as per order dated 14.9.2021 in I.A.No.2 of 2020. Hence the parties are for the sake of convenience, referred to as per the status before the Tribunal. 2. The petitioner had filed the claim petition under Section 166 of the Motor Vehicles Act, 1988, claiming compensation on account of the injuries that he sustained in an accident on 20.6.2002. It was his case that, while he was travelling in an autorickshaw bearing registration No.KL-11/L-4325 from Thamarassery to Parappanpoyil on the above said date, the second respondent drove the MACA 1770/2009 3 autorickshaw at excessive speed and in a negligent manner and hit against a jeep. In the accident, the petitioner sustained serious injuries. He was taken to the Medical College Hospital, Kozhikode and his left leg had to be amputated. The petitioner was a barber by profession and earning a monthly income of Rs.7,000/-. The autorickshaw was owned by the first respondent and insured with the third respondent. The petitioner claimed a compensation of Rs.8,00,000/- from the respondents. 3. The respondents 1 and 2 did not contest the proceedings and were set exparte. The third respondent had filed a written statement admitting that the autorickshaw had a valid insurance coverage. However, the third respondent denied its liability to pay the compensation. 4. The petitioner produced and marked Exhibits A1 to A7 in evidence. The respondents did not let in any evidence. 5. The Tribunal, after analysing the pleadings and materials on record, allowed the claim petition in part, by MACA 1770/2009 4 permitting the petitioner to realise an amount of Rs.5,69,400/- with interest at the rate of 8% per annum from the date of petition till the date of realisation and a cost of Rs.2,500/-. 6. Aggrieved by the impugned award, the third respondent insurer is in appeal. 7. Heard ; Smt. Raji T.Bhaskar, the learned counsel appearing for the appellant/third respondent and Smt.Rashmi.K.V., the learned counsel appearing for the respondent/petitioner. 8. The sole question that arises for consideration in the appeal is whether the quantum of compensation awarded by the Tribunal is reasonable and just. 9. The core dispute in the appeal is that the Tribunal has unilaterally fixed the permanent disability of the respondent/petitioner at 80% without even a disability certificate. Therefore, the compensation awarded for the loss due to disability is excessive and unreasonable. 10. When the appeal was taken up for consideration on 30.9.2021, the learned counsel appearing for the MACA 1770/2009 5 appellant/third respondent argued that the Tribunal has, without seeing the respondent/petitioner, fixed the permanent disability at 80%, which is erroneous and perverse, especially when no disability certificate was produced to prove the disability. 11. In view of the above submission, the respondent was directed to be personally present before this Court, in order to ascertain the magnitude of the disability and also keeping in mind that the appeal has been pending before this Court for the last more than 12 years, at this distance of time it would be a travesty of justice to refer the respondent to a Medical Board. 12. Pursuant to the above direction, the respondent appeared before me today, and I have personally interacted with him. I have also personally seen that the respondent's left leg has been amputated above his knee, about 10 inches below his hip. The respondent emphatically told me that he had appeared before the Tribunal on 3.3.2008, the date on which the award was pronounced. The Tribunal ascertained the amputation of the respondent's left leg. MACA 1770/2009 6 The respondent was a barber by profession. After the amputation, the respondent is unable to stand even a short duration due to the pain on his right leg. He has no source of income. He and his family are pulling on with life with the meager income earned by his wife, who works as a housemaid. The respondent had to change his artificial limp twice by expending Rs.18,000/- on each occasion. Now due to the severe financial distress, he is unable to change the artificial limp despite the lapse of more than five years. He hence prayed that the compensation amount may be disbursed to him at the earliest. 13. Undisputedly, as personally witnessed by me and as per Exhibit A3 wound certificate, the respondent's left leg has been amputated just below his hip. He is now moving around with an artificial limp. It is practically impossible for the respondent to carry on with his avocation as a barber. 14. In **Raj Kumar v. Ajay Kumar** [2011 (1) KLT 620 (SC)], the Honourable Supreme Court has held that what needs to be looked into in a case of injury is the functional MACA 1770/2009 7 disability of the injured - claimant. 15. The Tribunal based on Exhibit A3 wound certificate and after seeing the respondent, fixed the functional disability of the respondent at 80%. 16. I have now re-ascertained the amputation of the respondent's left leg below the hip and above the knee. I am definite that he would be unable to carry on with his avocation. 17. In the above factual and legal matrix, I do not find any error or wrong in the assessment made by the Tribunal, of the functional disability of the respondent at 80%. Therefore, I uphold the findings of the Tribunal in this regard. 18. On an overall re-appreciation of the pleadings and materials on record and the findings rendered above, I uphold the impugned award by confirming the compensation amount awarded by the Tribunal at Rs.5,69,400/- with interest at the rate of 8% per annum from the date of petition till the date of realisation and cost of Rs.2,500/-. This Court had at the time of admitting the MACA 1770/2009 8 appeal, on 27.7.2009, had directed the appellant/3[rd] respondent to deposit 50% of the compensation amount within six weeks. However, there was no direction to release the amount. The Tribunal shall forthwith release to the respondent the 50% of the compensation with accrued interest that is lying in deposit before the Tribunal, in accordance with law. The appellant/3[rd] respondent shall deposit the balance compensation amount with interest and cost before the Tribunal within one month from the date of receipt of a certified copy of this judgment. After the appellant/3[rd] respondent deposits the balance amount, the same shall also be released to the respondent/petitioner with interest and cost in accordance with law. The appeal is dismissed with the above directions. Sd/- **C.S.DIAS, JUDGE** csl