Kerala High Court
United India Insurance Co. Ltd vs V.Mani on 6 October, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
WEDNESDAY, THE 6TH DAY OF OCTOBER 2021 / 14TH ASWINA, 1943
MACA NO.1770 OF 2009
AGAINST THE AWARD IN OP(MV) NO.2299/2002 OF IST ADDITIONAL MOTOR
ACCIDENTS CLAIMS TRIBUNAL, KOZHIKODE
APPELLANT/3RD RESPONDENT:
THE UNITED INDIA INSURANCE CO. LTD.
REP.BY ITS ASST.MANAGER, REGIONAL OFFICE,
SHARANYA, HOSPITAL ROAD, ERNAKULAM.
BY ADV SMT.RAJI T.BHASKAR
RESPONDENTS/PETITIONER & RESPONDENTS 1 & 2:
1 V.MANI
S/O.KRISHNAN,
AGED ABOUT 38 YEARS,
RESIDING AT AKKIRIPARAMBU HOUSE,
P.O.PARAPPANPOYIL, VIA.THAMARASSERY, KOZHIKODE.
2 C.K.MOHAMMED
S/O.KUTTI HASSAN
RESIDING AT THIRUTHIYAD, KOZHIKODE.
3 LINESH
S/O.LOHITHAKSHAN NAIR
AGED ABOUT 31 YEARS,
RESIDING AT ANAPPARAKKAL HOUSE,
P.O.RAROTH, KOZHIKODE.
RESPONDENTS 2 AND 3 ARE DELETED FROM THE PARTY ARRAY AT
THE RISK OF THE APPELLANT VIDE ORDER DATED 14.9.2021 IN
I.A.NO.2/2020.
BY ADV SMT.K.V.RESHMI
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 06.10.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
MACA 1770/2009 2
JUDGMENT
Dated this the 6th day of October, 2021
The appellant was the third respondent in O.P.(M.V.)
No.2299 of 2002 on the file of the Ist Additional Motor
Accidents Claims Tribunal, Kozhikode. The respondent in
the appeal was the petitioner before the Tribunal. Even
though the appellant had impleaded respondents 1 and 2 as
respondents 2 and 3 before this Court, at the instance of
the appellant, the said respondents were deleted from the
party array as per order dated 14.9.2021 in I.A.No.2 of
2020. Hence the parties are for the sake of convenience,
referred to as per the status before the Tribunal.
2. The petitioner had filed the claim petition under
Section 166 of the Motor Vehicles Act, 1988, claiming
compensation on account of the injuries that he sustained
in an accident on 20.6.2002. It was his case that, while he
was travelling in an autorickshaw bearing registration
No.KL-11/L-4325 from Thamarassery to Parappanpoyil on
the above said date, the second respondent drove the
autorickshaw at excessive speed and in a negligent manner
and hit against a jeep. In the accident, the petitioner
sustained serious injuries. He was taken to the Medical
College Hospital, Kozhikode and his left leg had to be
amputated. The petitioner was a barber by profession and
earning a monthly income of Rs.7,000/-. The autorickshaw
was owned by the first respondent and insured with the
third respondent. The petitioner claimed a compensation
of Rs.8,00,000/- from the respondents.
3. The respondents 1 and 2 did not contest the
proceedings and were set exparte. The third respondent
had filed a written statement admitting that the
autorickshaw had a valid insurance coverage. However,
the third respondent denied its liability to pay the
compensation.
4. The petitioner produced and marked Exhibits A1
to A7 in evidence. The respondents did not let in any
evidence.
5. The Tribunal, after analysing the pleadings and
materials on record, allowed the claim petition in part, by
permitting the petitioner to realise an amount of
Rs.5,69,400/- with interest at the rate of 8% per annum
from the date of petition till the date of realisation and a
cost of Rs.2,500/-.
6. Aggrieved by the impugned award, the third
respondent insurer is in appeal.
7. Heard ; Smt. Raji T.Bhaskar, the learned counsel
appearing for the appellant/third respondent and
Smt.Rashmi.K.V., the learned counsel appearing for the
respondent/petitioner.
8. The sole question that arises for consideration in
the appeal is whether the quantum of compensation
awarded by the Tribunal is reasonable and just.
9. The core dispute in the appeal is that the
Tribunal has unilaterally fixed the permanent disability of
the respondent/petitioner at 80% without even a disability
certificate. Therefore, the compensation awarded for the
loss due to disability is excessive and unreasonable.
10. When the appeal was taken up for consideration
on 30.9.2021, the learned counsel appearing for the
appellant/third respondent argued that the Tribunal has,
without seeing the respondent/petitioner, fixed the
permanent disability at 80%, which is erroneous and
perverse, especially when no disability certificate was
produced to prove the disability.
11. In view of the above submission, the respondent
was directed to be personally present before this Court, in
order to ascertain the magnitude of the disability and also
keeping in mind that the appeal has been pending before
this Court for the last more than 12 years, at this distance
of time it would be a travesty of justice to refer the
respondent to a Medical Board.
12. Pursuant to the above direction, the respondent
appeared before me today, and I have personally interacted
with him. I have also personally seen that the respondent's
left leg has been amputated above his knee, about 10
inches below his hip. The respondent emphatically told me
that he had appeared before the Tribunal on 3.3.2008, the
date on which the award was pronounced. The Tribunal
ascertained the amputation of the respondent's left leg.
The respondent was a barber by profession. After the
amputation, the respondent is unable to stand even a short
duration due to the pain on his right leg. He has no source
of income. He and his family are pulling on with life with
the meager income earned by his wife, who works as a
housemaid. The respondent had to change his artificial limp
twice by expending Rs.18,000/- on each occasion. Now due
to the severe financial distress, he is unable to change the
artificial limp despite the lapse of more than five years. He
hence prayed that the compensation amount may be
disbursed to him at the earliest.
13. Undisputedly, as personally witnessed by me and
as per Exhibit A3 wound certificate, the respondent's left
leg has been amputated just below his hip. He is now
moving around with an artificial limp. It is practically
impossible for the respondent to carry on with his
avocation as a barber.
14. In Raj Kumar v. Ajay Kumar [2011 (1) KLT 620
(SC)], the Honourable Supreme Court has held that what
needs to be looked into in a case of injury is the functional
disability of the injured - claimant.
15. The Tribunal based on Exhibit A3 wound
certificate and after seeing the respondent, fixed the
functional disability of the respondent at 80%.
16. I have now re-ascertained the amputation of the
respondent's left leg below the hip and above the knee. I
am definite that he would be unable to carry on with his
avocation.
17. In the above factual and legal matrix, I do not
find any error or wrong in the assessment made by the
Tribunal, of the functional disability of the respondent at
80%. Therefore, I uphold the findings of the Tribunal in
this regard.
18. On an overall re-appreciation of the pleadings
and materials on record and the findings rendered above, I
uphold the impugned award by confirming the
compensation amount awarded by the Tribunal at
Rs.5,69,400/- with interest at the rate of 8% per annum
from the date of petition till the date of realisation and cost
of Rs.2,500/-. This Court had at the time of admitting the
appeal, on 27.7.2009, had directed the appellant/3 rd
respondent to deposit 50% of the compensation amount
within six weeks. However, there was no direction to
release the amount. The Tribunal shall forthwith release to
the respondent the 50% of the compensation with accrued
interest that is lying in deposit before the Tribunal, in
accordance with law. The appellant/3 rd respondent shall
deposit the balance compensation amount with interest and
cost before the Tribunal within one month from the date of
receipt of a certified copy of this judgment. After the
appellant/3rd respondent deposits the balance amount, the
same shall also be released to the respondent/petitioner
with interest and cost in accordance with law.
The appeal is dismissed with the above directions.
Sd/-
C.S.DIAS, JUDGE
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