IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
TUESDAY, THE 31ST DAY OF MAY 2022 / 10TH JYAISHTA, 1944
MACA NO. 691 OF 2012
AGAINST THE AWARD IN O.P(MV) No.1702/2009 OF MOTOR
ACCIDENT CLAIMS TRIBUNAL, KOLLAM
APPELLANT/PETITIONER:
SELFUDHEEN, S/O.IBRAHIMKUTTY,
SIMNA MANZIL, PERUMPUZHA P.O., KOLLAM.
BY ADV. SRI.PRATHEESH.P
RESPONDENT/3RD RESPONDENT:
1 THE BRANCH MANAGER,
THE ORIENTAL INSURANCE CO.LTD., PUNALUR-691 305.
* ADDL. R2 IMPLEADED
*ADDL.R2 KUNJU MOIDEEN, S/O PATHUMMA,
PULLUNIYIL VEEDU, CHANNAPETTAH,
KOLLAM - 691 706.
*ADDL.2ND RESPONDENT IS IMPLEADED AS PER ORDER
DATED 21/12/2021 IN I.A. 1202/2012 IN MACA
691/2012.
BY ADV. SRI.M.JACOB MURICKAN
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
HEARING ON 31.05.2022, THE COURT ON 01.06.2022, DELIVERED
THE FOLLOWING:
M.A.C.A No.691 of 2012
2
JUDGMENT
This appeal is at the instance of the petitioner in O.P.(M.V) No.1702/2009 on the file of Motor Accidents Claims Tribunal, Kollam and the award dated 29.08.2011 in the above case is under challenge in this appeal. Respondent herein is the 3rd respondent in the Original Petition.
2. Heard the learned counsel for the appellant and the learned counsel for the Insurance Company.
3. Brief facts of the case:
Appellant/petitioner, who met with an accident on 13.06.2009 at about 8:30 p.m. while travelling on a motor cycle bearing registration No.KL-2/M 7218 through Kottiyam- Kundara public road, had approached the Tribunal and claimed compensation to the tune of Rs.2 lakh.
4. Respondents 1 and 2 were set ex-parte M.A.C.A No.691 of 2012 3 by the Tribunal.
5. 3rd respondent, the Insurance Company filed written statement and admitted policy while disputing the liability. According to the Insurance Company since the 2 nd respondent had no driving license at the time of accident, the Company has no liability to indemnify the insurer.
6. The Tribunal examined PW1 and marked Exts.A1 to A13 on the side of the petitioner. No evidence let in by the respondents.
7. Thereafter, as against the claim of Rs.2 lakh, Rs.1,40,000/- awarded as compensation. Recovery right was given to the Insurance Company on finding that the driver of the offending vehicle had no driving license.
8. It is submitted by the appellant that the monthly income fixed by the Tribunal in this case is too low. According to him, the petitioner claimed his income at Rs.4,000/- per month being a person self employed. But the M.A.C.A No.691 of 2012 4 Tribunal fixed the same at Rs.3,000/-.
9. Though the learned counsel for the appellant argued to re-fix the monthly income following the ratio in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. : (2011) 13 SCC 236, the learned counsel for the Insurance Company zealously opposed the said contention on the submission that nothing more than what has been claimed by the appellant is liable to be granted.
10. On the facts, I am of the view that Rs.4,000/- to be fixed as monthly income as claimed by the petitioner, for calculating the compensation. Thus, monthly income of the petitioner is re-fixed as Rs.4,000/- as against Rs.3,000/- fixed by the Tribunal. Age fixed and the multiplier applied by the Tribunal are not disputed.
11. The Tribunal granted Rs.9,000/- under the head 'loss of earnings' for three months. M.A.C.A No.691 of 2012 5 The learned counsel for the petitioner pressed for four months 'loss of earnings'. Considering the multiple fractures, viz., fracture of left wrist and fracture of left femur, I am inclined to grant Rs.4,000/- as 'loss of earnings' for a period of four months. Thus, the appellant is entitled to get Rs.16,000/-. Accordingly, Rs.7,000/- more is granted under the head 'loss of earnings'.
12. Coming to 'loss of disability income' as rightly pointed out by the learned counsel for the appellant, the Tribunal fixed 7% disability even though no disability certificate was produced. However, only 5% was taken into consideration. In view of the matter, the disability income shall be recalculated by fixing 7% disability on the basis of Rs.4,000/- as the monthly income, 4000x12x7x13% = 43,680/-
Out of which, Rs.32,760/- was granted by M.A.C.A No.691 of 2012 6 the Tribunal. Thus, Rs.10,920/- more is granted under the head 'loss of disability income'.
13. According to the learned counsel for the petitioner, no amount granted under the head 'loss of amenities'. Therefore, Rs.10,000/- is granted under the head 'loss of amenities'. Rs.15,000/- is the amount granted by the Tribunal under the head 'pain and sufferings'. The same is on lower side as contended by the learned counsel for the appellant. However, Rs.5,000/- more is granted under the head 'pain and sufferings'.
14. In the result, this appeal is allowed. It is held that the appellant is entitled to get Rs.1,72,920/- as compensation out of which Rs.1,40,000/- was granted by the Tribunal and the balance amount of Rs.32,920/- is granted as enhanced compensation with the same rate of interest awarded by the Tribunal, payable by the 1st and 2nd respondent jointly and severally, M.A.C.A No.691 of 2012 7 from the date of petition till the date of deposit or realisation.
As per the award amount, the learned Tribunal granted recovery right to the Insurance Company from the 1st respondent on finding that the 2nd respondent, the driver of the vehicle had no driving license on the date of accident. Nothing available in evidence to hold otherwise. Therefore, it is specifically ordered that the Insurance Company can realise the entire award amount including the enhanced compensation along with interest from the 1 st respondent on depositing the same before the Tribunal.
The Insurance Company is directed to deposit the same in the name of the appellant within two months from today and proceed to recover the same thereafter.
Sd/-
A.BADHARUDEEN, JUDGE.
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