U. Saidalavi v. Shanavas, Kunjimohammed, The Oriental Insurance Company Limited

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. WEDNESDAY, THE 3[RD] DAY OF JANUARY 2024 / 13TH POUSHA, 1945 MACA NO. 2116 OF 2012 ``` ``` AGAINST THE AWARD DATED 06.06.2012 IN OP(MV) 669/2007 OF MOTOR ``` ## **`ACCIDENT CLAIMS TRIBUNAL, MANJERI`** ## **`APPELLANT/PETITIONER:`** ``` U. SAIDALAVI AGED 40 YEARS S/O.KUNHIMOHAMMED @ MOIDEEN, ULLATTIL HOUSE, A.R.NAGAR P.O., MALAPPURAM DISTRICT. BY ADVS. SRI.P.SAMSUDIN SMT.NIMA JACOB ``` ## **`RESPONDENTS/RESPONDENTS:`** ``` 1SHANAVAS S/O. MOHAMMED @ KUNHAN, CHOKIL HOUSE, PERUVALOOR, KADAPADI, ILLATHUKAD, MALAPPURAM DISTRICT-676 505. (DRIVER) 2KUNJIMOHAMMED S/O.MOIDEENKUTTY, PAVAGADAM, THENHIPALAM, MALAPPURAM DISTRICT-673 636. (OWNER) 3THE ORIENTAL INSURANCE COMPANY LIMITED BRANCH OFFICE, JASEELA COMPLEX, NILAMBUR ROAD, MANJERI-679 329. (INSURER). BY ADVS. SMT.A.SREEKALA ``` ``` THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 03.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` MACA NO. 2116 OF 2012 ``` ``` 2 ``` ## **`JUDGMENT`** The appellant was the petitioner in O.P.(M.V.) No.669/2007 on the files of the Motor Accident Claims Tribunal, Manjeri. The said claim petition was submitted by him seeking compensation for the injuries sustained by him in a motor accident that occurred on 05.01.2007. 2. According to the appellant, the accident occurred when he was hit by a motorcycle while he was walking through the road. The said motorcycle was driven by the 1st respondent, owned by the 2nd respondent and was insured with the 3rd respondent herein. The petitioner was working as a driver in Gulf with a monthly income of 1,300 Saudi Riyals. He was aged 35 years. It was contended that consequent to the injuries, he sustained permanent disablement. The claim petition was submitted in such circumstances. 3. Even though the 1st respondent appeared before the Tribunal, he did not file any written statement. The 2nd respondent remained ex parte. The 3rd respondent filed a written statement admitting the existence of a valid policy but contended ``` MACA NO. 2116 OF 2012 ``` ``` 3 ``` that the 1st respondent did not have any valid driving license to drive the vehicle, and, therefore, there was a violation of policy conditions. The quantum of compensation was also disputed by them. 4. The evidence in this case consists of Exts.A1 to A5 from the side of the appellants. The medical report showing the disability of the appellant was produced as Ext.X1. From the side of the respondents, Ext.B1 and B2 were marked. After the trial, the Tribunal came to the conclusion that the accident occurred due to negligence on the part of the 1st respondent. The Tribunal also found that there was a violation of the policy condition as the 1st respondent did not have a valid driving license at the time of the accident. Therefore, the primary responsibility to pay the compensation was fixed upon the 3rd respondent, being the insurer, but they were permitted to recover the said compensation from the 2nd respondent. The quantum of compensation was fixed as Rs.96,535/- and the said amount was directed to be deposited by the 3rd respondent with interest @ 9% per annum from the date of petition with proportionate costs ``` MACA NO. 2116 OF 2012 ``` ``` 4 ``` subject to the right of recovery granted to them. This appeal is submitted by the appellant seeking enhancement of compensation. 5. Heard Sri.P. Samsudin, learned counsel appearing for the appellant and Smt.A.Sreekala, learned counsel appearing for the 3[rd] respondent. 6. The specific contention put forward by the learned counsel for the appellant is with regard to the inadequacy of compensation under various heads. On going through the materials placed on record, I find force in the said contention. It is to be noted that the monthly income took by the Tribunal for assessing the compensation was only Rs.3,000/- which appears to be on the lower side. Even though the appellant claimed that he was working in the Gulf as a driver and drawing a monthly income of 1,300/- Riyals, there is absolutely no evidence to substantiate the same. Therefore, the said figure cannot be accepted. However, the monthly income of Rs.3000/- is on the lower side by any stretch of the imagination. It is to be noted in this regard that when the method of computation of monthly ``` MACA NO. 2116 OF 2012 ``` ``` 5 ``` income evolved from the principles laid down in **Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co.Ltd** [(2011) 13 SCC 236], and **Syed Sadiq v. Divisional Manager, United India Insurance Company** [(2014) 2 SCC 735] is adopted, the monthly income of an ordinary employee in respect of an accident occurred in the year 2007 can be reasonably fixed as Rs.6,000/-. Therefore, the said monthly income is accepted in this case. 7. The next aspect relates to the percentage of disability. Even though the Ext.X1 disability certificate contains the assessment of disability by the Medical Board as 15%, the Tribunal scaled it down to 7.5%. However, I am of the view that when a Medical Board consisting of a panel of expert Doctors had specifically assessed the disability of the appellant and certified the whole body disability as 15%, the Tribunal should not have scaled down the said percentage in the absence of any specific inconsistency. On going through the said certificate, it can be seen that the Medical Board has assessed the disability by showing the reasons for such assessment, which appears to ``` MACA NO. 2116 OF 2012 ``` ``` 6 ``` be convincing. Therefore, I am of the view that the entire percentage of disability as certified in Ext.X1 has to be accepted. It is ordered accordingly. 8. While reassessing the compensation with the revised monthly income and the percentage of disability as 15%, the amount of compensation for disability would come to Rs.1,72,800/- (6,000 x 12 x 16 x 15/100). The amount already awarded by the Tribunal is Rs.43,200/-; thus, the additional amount would come to Rs.1,29,600/-. The amount awarded under the head of pain and suffering was only Rs.9,000/- which appears to be on the lower side. It is discernible from the records that the petitioner had suffered a trimalleolar fracture on the left ankle and was hospitalized for five days. As evidenced by Ext.X1, the said disability also resulted in physical disability. In such circumstances, a further sum of Rs.11,000/- can be granted under the head of pain and suffering. No amount is seen to have been awarded by the Tribunal towards the loss of amenity and conveniences. As observed above, the injuries resulted in physical disability, and he has to live with that disability, which will ``` MACA NO. 2116 OF 2012 ``` ``` 7 ``` affect the quality of his life. Therefore, the Tribunal ought to have granted some amount towards loss amenities as well. In the facts and circumstances of the case, I deem it appropriate to grant an amount of Rs.20,000/- under the said head. Similarly, no amount is awarded towards extra nourishment as well. Considering the nature of the injuries and the period of hospitalization, I deem it appropriate to grant Rs.1,000/- under the said head. Similalry, consequent to the revision of monthly income appellant is entitled for additional amount under the head of loss of earnings. The Tribunal awarded, compensation under this head for three months and therefore, a further sum of Rs 9,000/- is awarded. Thus, the total additional compensation receivable by the appellant is determined as Rs.1,70,600/- (1,29,600 + 9,000 + 11,000 + 20,000 + 1,000) In the light of the aforesaid observations and findings, this appeal is allowed. The award dated 06.06.2012 passed by the Motor Accident Claims Tribunal, Manjeri in O.P.(M.V.) No.669/2007 is hereby modified by awarding an additional amount of Rs.1,70,600/- (Rupees one lakh seventy thousand and ``` MACA NO. 2116 OF 2012 ``` ``` 8 ``` six hundred only) and the said amount shall be deposited by the 3[rd] respondent Insurance Company with interest at the rate as ordered by the Tribunal and with proportionate cost. The said deposit shall be made within a period of three months from the date of receipt of a copy of this judgment. ``` Sd/- ZIYAD RAHMAN A.A. JUDGE ``` scs