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IN THE HIGH COURT OF KERALA AT ERNAKULAM
A. BADHARUDEEN, J.
Shaju S/o Ramakrishnan – Appellant
Versus
Purushothaman – Respondent
M.A.C.A. Nos. 112, 1645 of 2013
Decided On : 06-12-2021
Motor Vehicles Act, 1988 - Section 166, 3(1) - Motor Vehicles Act, 1939 - Section 96 (2)(b) - Motor Vehicles Act, 1988 - Section 2(21) - Section 3(b) of the Central Motor Vehicles Rules, 1989 - Central Motor Vehicles Rules, 1989 - Rule 3 - Whether contention raised by petitioner to get enhanced compensation is sustainable - Whether Tribunal is justified in granting recovery right on finding that respondent did not possess a valid driving licence at time of accident.
Finding of the Court:
Respondent/appellant in M.A.C.A. being insured, who violated policy conditions, is bound to pay compensation - Tribunal ordered insurer to deposit same initially and recover same from insured - Finding only to be confirmed extending said right in matter of recovery to tune granted as additional compensation in connected appeal M.A.C.A. - Insurance company is directed to deposit entire amount and recover same from insured amount deposited along with accrued interest thereof from date of deposit to date of realization.
Result: M.A.C.A. partly allowed
JUDGMENT :
A. BADHARUDEEN, J.
1. M.A.C.A. No. 1645/2013 is an appeal filed by the 1st respondent in O.P. (MV) No. 1357 of 2007 on the file of the Motor Accident Claims Tribunal, Irinjalakuda challenging award dated 06.11.2012 in the above case. The original petitioner has filed M.A.C.A. No. 112 of 2013 for getting enhanced compensation.
2. Heard the learned counsel for the appellants and the contesting respondents in appeal.
3. Short facts:
4. I will refer the parties in these matters as petitioner and respondents herein.
5. 1st and 2nd respondents were set ex-parte before the Tribunal. The 3rd respondent filed written statement. Issuance of valid policy to vehicle KL-8/R-7612 was admitted. Breach of violation of policy conditions alleged on the ground that the 2nd respondent was not having an effective and valid driving licence at the time of the accident and as such the insurer sought for complete exoneration. Despite that, claims under various heads were opposed.
6. The Tribunal examined PWs. 1 and 2 and marked Exts.A1 to A10 on the side of the petitioner. No evidence let in by the respondents including the insurance company.
7. The Tribunal appraised the evidence and finally granted Rs. 58,682/- in favour of the petitioner with direction to the 3rd respondent to deposit the same. Further the Tribunal granted recovery right of the said sum to the insurance company from the 1st respondent, the owner of the vehicle.
8. First of all, I would like to venture on the question as to whether the contention raised by the petitioner to get enhanced compensation is sustainable, if so, to what extent. It is submitted by the learned counsel for the petitioner that though Rs. 5,000/- was claimed as the monthly income of the petitioner, who was aged 37 years doing the job of a Conductor, the Tribunal marginally reduced the same to Rs. 2,000/- and the same is not justified. According to the learned counsel, Rs. 5,000/- as such ought to have been accepted following the ratio in Ramachandrappa vs. Manager, Royal Sundaram Alliance, AIR 2014 SC 1052 : (2014) 2 SCC 735, wherein Rs. 4,500/- was fixed as the monthly income of a coolie during 2004. This aspect is not in dispute. Therefore, for the purpose of re-fixation of loss of earning as well as loss of disability income, Rs. 5,000/- is fixed as the monthly income in this case, where the accident was during 2007. According to the learned counsel for the petitioner, the petitioner is entitled to get enhanced amount in other heads also.
9. On perusal of the evidence, fracture left fibula is the diagnosis and that could be gathered from Ext.A4 discharge certificate issued from St. James Hospital, Chalakkudy, supported by Ext.A3 wound certificate, prepared soon after the accident. The Tribunal granted Rs. 4,000/- alone towards loss of earnings @ Rs. 2,000/- for 2 months. Considering seriousness of the fracture and the consequential treatment, I am inclined to grant loss of earnings for 4 months. This would come to Rs. 20,000/- [5000 x 4] out of which Rs. 4,000/- granted by the Tribunal and hence Rs. 16,000/- more is granted under this head. Coming to disability, the multiplier and the percentage of disability fixed by the Tribunal based on Ext.A5 is not in dispute. However, the disability income required to be recalculated on the basis of Rs. 5,000/- as the monthly income which would come to: 5000 x 12 x 15 x 9.52 = 85,680/- out of which Rs. 34,272/- was granted. Hence Rs. 51,408/
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