Kerala High Court
Selfudheen vs The Branch Manager on 31 May, 2022
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
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
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
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
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
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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