Kerala High Court
Ameerkhan @ Ashiq vs Achuthankutty on 2 March, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
TUESDAY, THE 02ND DAY OF MARCH 2021 / 11TH PHALGUNA, 1942
MACA.No.914 OF 2010(C)
AGAINST THE AWARD IN OPMV 3801/2003 OF SPECIAL COURT FOR EC ACT
CASES &MOTOR ACCIDENT CLAIMS TRIBUNAL ,TSR
APPELLANT/S:
AMEERKHAN @ ASHIQ
VADAKKE KOLLAMPARAMBIL HOUSE, P.O.ELAMAKKARA,,
COCHIN-26, ERNAKULAM DISTRICT.
BY ADV. SRI.P.V.CHANDRA MOHAN
RESPONDENT/S:
1 ACHUTHANKUTTY, S/O SETHUMADHAVAN,
"ACHUTH", AISWARYA NAGAR, NOORANI, PALAKKAD DISTRICT.
2 * VIJU S/O. KRISHNANKUTTY
MUTHUKULAM HOUSE, NOORANI P.O., EAST VANNAKKARA,,
PALAKKAD DISTRICT. (DELETED)
* R2 IS DELETED FROM THE PARTY ARRAY AT THE RISK OF
THE APPELLANT VIDE ORDER DATED 11.11.2019 IN IA
NO.1/2019 IN MACA 914/2010
3 NATIONAL INSURANCE CO. LTD.
AMBICA ARCADE, M.G.ROAD, THRISSUR.
R1 BY ADV. SRI.A.R.GANGADAS
R1 BY ADV. SMT.RAJI T.BHASKAR
R3 BY ADV. SRI.RAJIT T.BHASKAR
OTHER PRESENT:
SRI.A.R.GANGADAS FOR R1, SMT.RAJI.T.BHASKAR FOR R3
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 26-02-2021, THE COURT ON 02-03-2021 DELIVERED THE FOLLOWING:
MACA.No.914 OF 2010(C) 2
P.V.KUNHIKRISHNAN, J
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M.A.C.A. No. 914 of 2010
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Dated this the 2nd day of March, 2021
JUDGMENT
This appeal is filed by the claimant in O.P.(M.V.) No.3801/2003
on the file of the Motor Accidents Claims Tribunal, Thrissur. The
above claim petition was filed for getting compensation under
Sec.166 of the Motor Vehicles Act.
2. The short facts are as follows :
On 4.9.2003 at about 5.30 p.m., while the petitioners were
travelling in a motor cycle bearing registration No.KL-8/X 5710
through Divanjimoola Railway Station Public Road, a car bearing
registration No.KL-9/J 1119 hit their vehicle and in the impact, both of
them fell on the road and sustained serious injuries. The car was
driven by the 2nd respondent in a rash and negligent manner and
thereby, the accident occurred. The vehicle was owned by the 1 st
respondent and it was insured by him with the 3 rd respondent as on
the date of accident. According to the claimant, the respondents are
jointly and severally liable to pay the compensation to the petitioners.
3. The above case was tried along with O.P.(M.V.) No.
3800/2003. To substantiate the case, Exts.A1 to A12 were marked on
the side of the claimants. Exts.B1 to B6 are the documents marked on
the side of the respondents. After going through the evidence and
documents available, the Tribunal found that the appellant is entitled
an amount of Rs.56,500/- as compensation. The Tribunal also found
that the Insurance Company is not liable to pay the compensation,
because there is an element of suppression of material fact by the
owner of the vehicle. Aggrieved by the above, this appeal is filed.
4. The counsel for the appellant submitted that even if there
is suppression of material fact as found by the Tribunal, there is only
a violation of policy condition for which Sec.149(2) is applicable and
only an order of pay and recover is possible. The counsel for the
Insurance Company also conceded on that aspect. There is no
appearance for the 1st respondent even though notice was served.
Therefore, the order exonerating the Insurance Company can be
modified and there can be a direction to the Insurance Company to
pay the compensation and they can be given liberty to recover the
same from the 1st respondent.
5. Then, the question is about the quantum of compensation.
The counsel for the appellant submitted that the appellant sustained
very serious injuries. The counsel takes me through the relevant
portion of the impugned award, in which the serious injuries
sustained by the appellant is narrated. The relevant portion is
extracted hereunder :
"Register cum Wound certificate issued from West
Fort Hospital, Thrissur it can be seen that the
petitioner has sustained lacerated wound of
1x.5x.5cm on temporo parietal region and 1x.5x.5cm
on right ear. As per Ext.A6, the Discharge Card
issued from the same Hospital, fracture of right
temporal bone with right temporal contusion and thin
SDH were diagnosed. When the CT scan was
repeated, no significant increase in the size of
contusion was noticed. Therefore, he was
managed conservatively. During Hospitalization, he
had acute posttraumatic psychosis and was treated
accordingly. He was improved neurologically and was
discharged on 15.9.03 with advice to continue
medication for two months. He was reviewed on
20.10.03. Ext.A7 is the CT Scan report. Ext.A10 is a
Medical Certificate issued by the Consultant Neuro
and Spine Surgeon of Medical College Hospital,
Thrissur assessing his Neurological disability as 20%
due to impairment of higher mental function as
impaired memory, attention span, recall impaired
affect, depressed mood and impaired coordination on
right side of body with impaired dexterity of right
hand, impaired language function and mild
impairment of word output."
6. The counsel submitted that the Tribunal arbitrarily fixed
the disability of the appellant as 5%. The counsel for the 3 rd
respondent submitted that the certificate produced to prove disability
is a certificate issued from a private hospital and the doctor is also
not examined. Therefore, it is contended that, without a certificate
from the Medical Board, this Court may not increase the disability
from 5% already granted by the Tribunal.
7. The Apex Court in Pappu Deo Yadav v. Naresh Kumar
and others [AIR 2020 SC 4424] after considering a plethora of
decisions on a point 'permanent disability' has held that the inquiry
that has to be conducted by the Court is the resultant loss of income
generating capacity of the claimant. The principle to be followed by
the court in assessing motor vehicles compensation claims is to place
the victim in the same position as he was before the accident. The
Bench referred to the earlier decisions in Syed Sadiq and others v.
Divisional Manager, United India Insurance Company [2014 (2)
SCC 735] and Raj Kumar v. Ajay kumar and anr. [2011 (1) KLT 620
(SC)] and held that the court should not adopt a stereotypical or
myopic approach, but instead, view the matter taking into account the
realities supplied, both in the assessment of extent of disabilities and
compensation under various heads.
8. I perused the injuries sustained by the appellant and the
certificates produced by the appellant to show the disability.
According to me, the assessment of 5% disability by the Tribunal may
not be correct. But 20% disability mentioned in Ext.A10 can't be
accepted blindly. It can be increased to 7%. As far as the income of
the petitioner is concerned, the Tribunal fixed the same as Rs.2,500/-.
The accident was in the year 2003. In the light of the decision in
Ramachandrappa v. The Manager, Royal Sundaram Alliance
Insurance Company Limited [AIR 2011 SC 2951], the monthly income
can be safely fixed as Rs.4,000/-. Consequently, the amount awarded for
loss of earning and compensation for disability has to be re-calculated.
As far as the damage to clothing is concerned, another Rs.500/- can be
given to the appellant. For pain and sufferings, only Rs.12,000/- is
granted. An amount of Rs.6,000/- more can be granted on that head. For
compensation of loss of amenities, no amount is paid and an amount of
Rs.20,000/- can be granted on that head. Towards compensation for
disability, the amount can be re-calculated in the following manner :
4,000 x 12 x 7 x 16/100 = Rs.53,760/-
An amount of Rs.24,000/- is already allowed by the Tribunal and
therefore, that amount is to be deducted. Therefore, the balance amount
will be Rs.29,760/-.Therefore, the enhanced amount the appellant is
entitled can be summarised like this :
Sl.No. Head Amount
1 Compensation for disability Rs.29,760/-
2 Loss of amenities Rs.20,000/-
3 Pain and sufferings Rs.6,000/-
4 Damage to clothing Rs.500/-
5 Loss of earning Rs.4,500/-
Total Rs.60,760/-
9. Therefore, the appellant is entitled an additional
compensation of Rs.60,760/-. The appellant is also entitled for interest at
the rate of 8% per annum from the date of application till realisation.
Therefore, this appeal is allowed in part. The impugned award is
modified. The appellant is entitled an additional amount of Rs. 60,760/-
with interest at the rate of 8% per annum from the date of application till
realisation. The respondent No.3 is liable to pay the amount. But, I
make it clear that the respondent No.3 can recover the amount from the
1st respondent.
Sd/-
P.V.KUNHIKRISHNAN
JUDGE
SKS
