Kerala High Court
Krishnanunni vs R.Balasubramanian on 9 March, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
TUESDAY, THE 09TH DAY OF MARCH 2021 / 18TH PHALGUNA, 1942
MACA.No.3093 OF 2008
AGAINST THE AWARD IN OPMV 664/2003 DATED 29-02-2008 OF MOTOR
ACCIDENT CLAIMS TRIBUNAL , PALAKKAD
APPELLANT/PETITIONER:
KRISHNANUNNI,S/O.KASU
KAMMANTHARA, KIZHAKKE VEEDU,, KANNAMBRA, PALAKKAD.
BY ADVS.
SRI.O.P.NANDAKUMAR
SRI.V.SHYAM
RESPONDENTS/RESPONDENTS:
1 R.BALASUBRAMANIAN, S/O. RATHINASWAMY
4205 SAMPATH NAGAR, ERODE DIST.,, COIMBATORE.
2 SUNAYANAN SO.M.A.GOPALAN
OTTUR HOUSE, CHITTADI MANGALAM DAM,, PALAKKAD
DISTRICT.
3 THE NEW INDIA ASSURANCE CO.LTD.
COONOR, IST FLOOR, N.K.N.COMPLEX,, BEDFORDCIRCLE,
COONOR - 643101, TAMIL NADU.
R3 BY ADV. SRI.VPK.PANICKER
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON
09-03-2021, ALONG WITH MACA.461/2009, MACA.461/2009(B), THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
M.A.C.A.Nos. 3093/2008 & 461/2009 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
TUESDAY, THE 09TH DAY OF MARCH 2021 / 18TH PHALGUNA, 1942
MACA.No.461 OF 2009
AGAINST THE AWARD IN OPMV 664/2003 DATED 29-02-2008 OF MOTOR
ACCIDENT CLAIMS TRIBUNAL , PALAKKAD
APPELLANT/2ND RESPONDENT:
THE NEW INDIA ASSURANCE CO.LTD
REGIONAL TOWERS, KANDAMKULATHU TOWERS,, M.G. ROAD,
ERNAKULAM, REPRESENTED BY ITS, DULY AUTHORISED
OFFICER.
BY ADV. SRI.VPK.PANICKER
RESPONDENTS/RESPONDENTS 1 & 2 & PETITIONER:
1 R.BALASUBRAMANIAN
S/O. RATHISWAMY, 4025 SAMPATH NAGAR,, ERODE
DISTRICT, COIMBATORE.
2 SUNAYANAN S/O.M.A. GOPALAN
OOTTUR HOUSE, CHITTADI MANGALAM DAM,, PALAKKAD
DISTRICT.
3 KRISHNANUNNI
S/O. KASU, KAMMANTHARA,, KIZHAKKE VEEDU,,
KANNAMBRA, PALAKKAD.
R1, R3 BY ADV. SRI.O.P.NANDAKUMAR
R1 BY ADV. SRI.V.P.REGHURAJ
R1 BY ADV. SRI.V.SHYAM
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD
ON 09-03-2021, ALONG WITH MACA.3093/2008, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
M.A.C.A.Nos. 3093/2008 & 461/2009 3
P.V.KUNHIKRISHNAN, J.
--------------------------------
M.A.C.A.Nos. 3093/2008 & 461/2009
-------------------------------
Dated this the 9th day of March, 2021
JUDGMENT
These two appeals are connected and the appeals are filed
challenging the same award passed by the Motor Accidents
Claims Tribunal, Palakkad. Therefore, I am disposing these two
appeals by a common judgment. (Hereinafter, the parties are
mentioned in accordance to their rank in the Tribunal).
2. M.A.C.A. 461/09 is filed by the third respondent in O.P.
(MV) No. 664/03 and M.A.C.A No. 3093/2008 was filed by the
petitioner/claimant in the above O.P.(MV). M.A.C.A.No.461/2009
is filed by the Insurance Company mainly for the reason that,
even though it is contended that the second respondent driver
was not having a proper licence during the period of accident,
that point is not considered properly by the Tribunal. The other
appeal is filed by the claimant for enhancement of compensation.
3. The short facts for disposing these appeals are like
M.A.C.A.Nos. 3093/2008 & 461/2009 4
this: On 16.02.2003 at about 3 p.m., the petitioner claimant
was travelling in a motor bike bearing Reg. No. KL.9/L.931 as
pillion rider from the place Kannambara to the place
Vadakkenchery. Then the Tata Sierra car bearing Reg.
No.TN.09/D.2689 hit against the said motor bike when it reached
near Karemkode junction and thereby the petitioner claimant
sustained injury. He was removed to Medical College Hospital,
Thrissur. According to the petitioner/claimant the accident
happened due to the negligent driving of the car by the second
respondent. The first respondent is the owner of the car and the
third respondent is the insurer.
4. To substantiate the case, the petitioner/claimant
produced Exts.A1 to A14. He himself was examined as PW1
before the Tribunal. Ext. B1 is the copy of the policy. After going
through the evidence and the documents, the Tribunal found that
the petitioner/claimant is entitled an amount of Rs. Rs.1,37,474/-
as compensation with interest @ 7.5% per annum. Even though
the third respondent took a contention before the Tribunal that
the second respondent driver has no valid licence, the Tribunal
rejected the same mainly for the reason that in the final report
filed by the police, there is no charge for the same. Aggrieved by
M.A.C.A.Nos. 3093/2008 & 461/2009 5
the above award, the Insurance Company filed M.A.C.A.
461/2009 and the claimant filed M.A.C.A. No. 3093/2008 for
enhancement of compensation.
5. I will consider the appeal filed by the Insurance
Company first. According to the counsel for the Insurance
Company, I.A.5412/2007 was filed before the Tribunal with a
prayer to issue appropriate direction to the second respondent to
produce the driving licence. According to the counsel, one
Advocate was appearing for the second respondent before the
Tribunal. Even then the driving licence was not produced. In
such situation, the court ought to have taken an adverse
inference under Section 114(g) of the Evidence Act. There is
force in the argument of the counsel for the Insurance Company.
Even after filing I.A. No. 5412/2007 to produce the driving
licence, the same was not produced. Moreover a lawyer was
appearing for the second respondent before the Tribunal. Even
then, the driving licence of the second respondent was not
produced. Therefore, it can be safely concluded that there was
no licence to the second respondent. Therefore, there can be an
order allowing recovery of the compensation amount from the
second respondent by the insurance company.
M.A.C.A.Nos. 3093/2008 & 461/2009 6
6. As far as M.A.C.A.No.3093/2008 is concerned the
claimant is the appellant. According to the claimant/appellant,
there was a disability certificate issued by the medical board and
the same was not produced before the Tribunal during the trial.
The medical board certificate is dated 27.2.2008 and the Tribunal
passed the award on 29.2.2008. Therefore, the appellant was
not able to produce the same before the Tribunal. Now the
counsel for the appellant produced the disability certificate issued
by the medical board. Therefore, that will be part of the record
and it is marked as Ext.C1. I perused Ext.C1. As per Ext.C1
there is a permanent disability of 60% belongs to moderate
category to the appellant.
7. It is true that no evidence is adduced to substantiate the
above disability certificate. But, this Court cannot ignore the
realities. In Pappu Deo Yadav v. Naresh Kumar and others
[AIR 2020 SC 4424] after considering the earlier decisions, the
Apex Court on the point of '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
M.A.C.A.Nos. 3093/2008 & 461/2009 7
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. It was also
held that the court should award compensation on future
prospects.
8. In the light of the above principle I am not in a position
to accept 60% disability to the appellant based on Ext.C1
disability certificate. The medical board clearly stated that the
permanent disability is in moderate category. But this Court can
safely conclude that the permanent disability of the claimant is
40%.
9. Moreover, the Tribunal fixed the monthly income of the
appellant as Rs.2500/-. According to the appellant, he was a
carpenter and he was getting Rs.4,000/- per month as income.
In the light of the judgment of the Apex Court in
Ramachandrappa V. Manager, Royal Sundaram Alliance
M.A.C.A.Nos. 3093/2008 & 461/2009 8
Insurance Co., Ltd. (2011 (13) SCC 236) the monthly income
of the appellant can be safely fixed as Rs.4,000/- because even
for a coolie the Apex Court fixed Rs.4,500/- as monthly income in
the year 2004. In the light of the judgment in National
Insurance Company Ltd., V. Pranay Sethi [2017 (4) KLT
662 (SC)] towards future prospects of earning capacity, 40% is
to be added. If that is the case the monthly income of the
appellant can be safely assessed as Rs.5,600/-. Based on this
monthly income and, permanent disability of the appellant, the
compensation for disability can be assessed in the following
manner.
Rs.5600x12x15x40/100= Rs. 4,03,200/-.
10. The appellant is entitled interest at the rate of 7.5%
per annum for the above amount. Towards loss of earning the
Tribunal assessed compensation for a period of six months @
Rs.2,500/-. Consequently, a change is necessary on that head.
It can be reassessed in the following manner.
Rs.4,000/- x6= Rs.24,000/-.
11. From the above amount the amount already granted is
to be deducted. Thus it will be Rs.9,000/- (Rs.24,000-
Rs.15,000).
M.A.C.A.Nos. 3093/2008 & 461/2009 9
12. Even though the counsel for the appellant argued that
he is entitled more compensation on the other heads also, after
perusing the impugned award and also considering the entire
facts and circumstances of the case, according to me no
interference is necessary on the other heads. Therefore, the
appellant is entitled an enhanced compensation of Rs.4,12,200/-
(Rs.4,03,200/- +Rs.9,000/-). The appellant is entitled interest @
7.5% per annum for the enhanced compensation.
13. In the result, M.A.C.A.3093/2008 is allowed in part
and the impugned award is modified. The appellant is entitled
enhanced compensation of Rs.4,12,200/- with interest @ 7.5%
per annum from the date of application till realisation. The third
respondent is directed to pay the enhanced compensation with
interest to the petitioner/claimant.
M.A.C.A.No.461/2009 is allowed. The third respondent New
India Insurance Company Ltd., can recover the compensation
amount and the enhanced compensation with interest from the
first respondent.
Sd/-
P.V.KUNHIKRISHNAN, JUDGE
al/-
