USAIBA BEEVI v. Shamshad Khan, Arshad S/o Abdullakunj u, and The Branch Manager, National Insurance Co. Ltd.

M.A.C.A.918/2012 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **WEDNESDAY, THE 24[TH] DAY OF AUGUST 2022 / 2ND BHADRA, 1944** **MACA NO. 918 OF 2012** **AGAINST THE AWARD OPMV 1213/2006 OF MOTOR ACCIDENT CLAIMS TRIBUNAL,** ## **KOLLAM** ## **APPELLANT/CLAIMANT:** USAIBA BEEVI D/O.FATHIMA BEEVI, SHAN MANZIL, ELAMPALLOOR VILLAGE, KOLLAM. BY ADVS. SRI.S.SANTHOSH KUMAR SMT.P.LISSY JOSE. ## **RESPONDENTS/RESPONDENTS:** 1 SHAMSHADKHAN, 13F, 31/1166, KARALITHODI, VALATHUNGAL.P.O., KOLLAM. 691 018. 2 ARSHAD S/O.ABDULLAKUNJU, ERATHU HOUSE, KAKKALACKAL MURI, ERAVIPURAM VILLAGE P.O, KOLLAM. 691 011. 3 THE BRANCH MANAGER NATIONAL INSURANCE CO.LTD., THIRUVANANTHAPURAM.695 001. BY ADV.E.M.JOSEPH FOR R3 THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON 24.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.A.C.A.918/2012 2 ## **C.JAYACHANDRAN, J** ## **-----------------------------------M.A.C.A.No.918 of 2012** **-------------------------------------Dated this the 24[th] day of August, 2022** ## **J U D G M E N T** **1.** The claimant in O.P(M.V).No.1213 of 2006 of the Motor Accidents Claims Tribunal, Kollam is the appellant. She is aggrieved about the exoneration of the insurance company from the liability, on the premise that the driver of the offending vehicle was a minor at the time of accident. **2.** Heard Sri.S.Santhoshkumar, learned counsel for the appellant and E.M.Joseph, learned Standing Counsel for the third respondent. Perused the records. **3.** Respondents 1 to 3 are the registered owner, driver and the insurer of the motor bike respectively. The owner of the vehicle remained exparte to the proceedings. **4.** Learned counsel for the 1[st] respondent/owner contended that the vehicle was duly insured with the 3[rd] M.A.C.A.918/2012 3 respondent and if any amount is ordered to be given to the petitioner as compensation, it is to be realized from the 3[rd] respondent. Exoneration of the third respondent/insurance company to pay the compensation amount is not legal is the contention. **5.** Per contra, learned counsel for the insurance company opposed the above submission. Learned counsel submits that the 2[nd] respondent was not having a valid driving license at the time of the accident. Besides, the accident occurred due to the negligence on the part of the appellant/claimant. **6** . Learned counsel for the appellant/claimant submitted that a direction to pay the compensation amount by the insurance company, supported by a clause enabling recovery from the owner of the vehicle, would have served the interests of justice. Learned counsel also pointed out that the compensation awarded under the various heads are grossly insufficient. ## M.A.C.A.918/2012 4 **7.** Though the above proposition was initially opposed by the learned counsel for the insurance company, to a query put by this Court, learned counsel would agree that going by the settled legal position in cases where there is no valid driving license at the time of accident, the compensation amount can be directed to be paid by the insurance company at the first instance, coupled with a clause for recovery of that amount from the owner and driver of the vehicle. **8.** Having regard to the facts and circumstances, this Court directs the 3[rd] respondent/insurance company to pay the amount fixed in this judgment, simultaneous with their right to get it recovered from the legal heirs of the owner and the driver of the vehicle. **9.** The next point canvassed by the learned counsel for the appellant/claimant is with respect to the finding of the learned Tribunal as regards contributory negligence, to the extent of 10%, on the part of the injured/claimant. In paragraph no.8 of the impugned award, ## M.A.C.A.918/2012 5 the Tribunal found that the appellant was crossing the road and going by Ext.A2 scene mahazar, the accident occurred at a spot 90cm north from the southern tar end, when the motor car was proceeding from east to west. No other reason is seen stated to find contributory negligence. In Ext.A4 wound certificate, there is an entry to the effect that the accident occurred while crossing the road. Both these reasons stated by the Tribunal are not tenable in law. When the vehicle is proceeding from east to west and the accident took place at 90cm north towards the southern tar end. What can be inferred is that the appellant/injured was about to finish crossing. From that fact itself, as culled out from Ext.A2 scene mahazar, no negligence can be drawn. Similarly, a mere entry in Ext.A2 to the effect that the accident took place while crossing the road is also grossly insufficient to draw contributory negligence. Therefore, this Court sets aside the finding of contributory negligence to the extent of 10% assigned by the Tribunal. M.A.C.A.918/2012 6 **10.** The next contention is with respect to the monthly income of the petitioner. Rs.2,000/- has been taken by the Tribunal, as against the claim of Rs.3,500/- made by the petitioner. Going by the notional income laid down in **Ramachandrappa** v. **Manager, Royal Sundaram Alliance Insurance Company Ltd. [2011 KHC 4675],** the notional income for the year 2006 is Rs.5,500/-. However, in as much as the appellant has claimed Rs.3,500/- only, this Court is inclined to reckon Rs.3,500/- as the monthly income. Another point emphasized is refusal of bystander expenses. It was pointed out that the petitioner was treated as an inpatient for a period of 8 days and she is entitled to bystander expenses Rs.200/- per day, which claim is only to be accepted. As against pain and suffering, Tribunal has granted Rs.10,000/- only. It could be seen from paragraph 9 of the award that, she had suffered an open fracture on her right leg. Therefore, it is reasonable to grant Rs.2,000/- more under that head. No amount is granted under the head loss of amenities. The petitioner is entitled for that and this Court fixes ## M.A.C.A.918/2012 7 Rs.7,500/– towards loss of amenities, particularly taken into the fact that, she was assessed with 6% disability. Towards extra nourishment, the Tribunal reckoned Rs.1,000/-, which is enhanced to Rs.2,000/-. **11.** In the result, this M.A.C.A is allowed and the amount due to the petitioner towards compensation is recalculated as indicated in the table herebelow: |**Sl.**<br>**No.**|**Head of Claim**|**Amount**<br>**awarded by**<br>**the**<br>**Tribunal**|**Total amount after**<br>**enhancement in**<br>**appeal**| |---|---|---|---| |1|Loss of earning for 4<br>months|8000|14,000<br>(Rs.3,500 x 4)| |2|Partial loss of earning|-|-| |3|Transport to the<br>Hospital|500|500| |4|Extra Nourishment|1000|2,000| |5|Damage to Clothing and<br>Articles|500|500| |6|Others – Bystander<br>expenses|-|1,600<br>[Rs.200 x 8]| |7|Medical Expenses|54,148|54,148| M.A.C.A.918/2012 8 |||8|| |---|---|---|---| ||||| |8|Compensation for pain<br>and suffering|10000|12,000| |9|Compensation for<br>continuing and permanent<br>disability|18720|32,760<br>[3,500x12x13x6/100]| |10|Compensation for the<br>loss of amenities|-|7,500| ||Total|92,868|1,25,008| |Amount enhanced = Rs.1,25,008/ – Rs.92,868/ =**Rs.32,140/**|||| **12** . It is clarified that the compensation fixed above shall be paid by the third respondent/insurance company at the first instance, with a right to recover the same from the legal heirs of the owner; and the driver. No amount is liable to be deducted towards contributory negligence. The Insurance Company shall pay interest for the amounts awarded by the Tribunal at the rate directed in the impugned award and for the enhanced amount, at the rate of 5% from the date of petition. If any amount has already been paid, the same shall be granted set off. Since there was a delay of 427 days in filing the appeal, the interest M.A.C.A.918/2012 9 for the enhanced quantum shall not run for the said period as directed in order dated 03.02.2022 in C.M.A.No.1/2012. The claimant shall produce the details of the Bank account before the Insurance Company/Tribunal within two months from the date of receipt of a certified copy of this judgment and amount shall be transferred to the Bank account directly through NEFT/RTGS mode, within a period of one month thereafter. If the Bank account is not given within the time stipulated, it is made clear that, no interest shall run on the enhanced amount after the period stipulated by this Court. However, if the Insurance Company fails to deposit the amount, as directed, interest on the enhanced amount shall also run at the rate ordered by the Tribunal from the date of petition. The appeal is allowed to the above extent. ## **Sd/-** ## **C.JAYACHANDRAN** ## **JUDGE** Sbna/