IMPORTANT POINT
The court enhanced the compensation for injuries sustained in a motor accident, clarifying the liability of the Insurance Company despite policy violations.

JUDGMENT :

Appellant Nos.2 to 4 are the legal heirs of the original petitioner who died pending this appeal. The original petition was filed by the first appellant claiming compensation on account of the injuries sustained by him in a motor accident.

2. The first appellant was 49 years old and working was as Junior Assistant in Kerala Electricity Board. On 3.4.2002 at about 5.15 pm while he was walking through the road situated near Post Office junction Changanacherry a goods autorikshaw bearing registration No.KL-4/7715 driven by the first respondent in a rash and negligent manner hit on the right leg of the first appellant and as a result, he sustained serious injuries including comminuted fracture on his right leg. Immediately he was taken to Government hospital Changanacherry and from there to St. Gregorious Hospital, Parumala and treated there as inpatient. He underwent an operation and sustained disability on his right leg as a result of the accident. The accident happened solely due to the rash and negligent driving of the goods autorickshaw by the first respondent. Second respondent is the insurer and the first and second respondents are jointly and severally liable to compensate the petitioner/appellant.

3. The first respondent remained ex-parte and the 2nd respondent filed written statement contending that the petition is not maintainable either in law or on facts. The accident was not reported by the first respondent and the driving license of the first respondent was also not produced. It was admitted that the goods autorikshaw involved in the accident stood insured with the second respondent as on the date of accident. It was also contended that the accident happened due to the negligence on the part of the first appellant/claimant himself who tried to cross the road abruptly. At least there was contributory negligence on the part of him. Though a written statement was filed by the second respondent, since he was absent, was set ex-parte. The Tribunal, thereafter, relying on Ext.Nos.A1 to A9 awarded a total compensation Rs.1,34,000/- with interest at the rate of 7.5% from date of petition till realisation from the second respondent. Since there was violation of policy conditions, the 2nd respondent Insurance Company was given liberty to recover the amount paid to the petitioner from the first respondent.

4. The first respondent is represented by Adv.T.P Pradeep. The second respondent is represented by Adv.Sri P.M.M. Najeeb Khan.

5. The counsel for the appellants Sri.T.K.Koshy submits that the Tribunal has held that even though there is disability to the extent of 15% being an employee in KSEB having a permanent job, is not entitled for compensation for disability. The counsel argues that the first appellant/claimant, though an employee of KSEB after retirement at the age of 56 years, will be disabled to do any other work which he could do before the accident and therefore disability compensation has to be worked out post retirement. He relied on the judgment of this court reported in Raju Sebastian v. United India Insurance co Ltd. (2021 (6) KLT 136) to contend for the preposition that for loss of dependency pertaining to the post retirement period the probable monthly income can be taken at the rate of 50% of his income as on the date of the accident for the purpose of computing the compensation for probable loss of earning after the date of his retirement. The Tribunal has taken the notional income as Rs.30000/- excluding pension the compensation for post retirement period.

6. It is seen that though a disability certificate was produced, the Doctor who issued the certificate has not treated the first appellant/claimant and it is not by the Medical Board but by a single Doctor. But relying on a decision reported in Kalesh v. Sudheer (2010 (1) KLT 537) the Tribunal after seeing the person fixed his permanent disability as 15%. At the time of accident according to the appellants the first appellant was drawing a salary o