IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 30TH MAY 2011 / 9TH JYAISHTA 1933 MACA.No. 746 of 2010() ---------------------- O.P.(MV)No.515/2004 IN THE MOTOR ACCIDENTS CLAIMS TRIBUNAL, KOTTAYAM ----------------------- APPELLANT(S)/PETITIONER :- ------------------------------------------ PANKAJAKSHIAMMA, W/O.GOPALAKRISHNAN, CHENGARAPADITTATHIL HOUSE, VAZHUVADI, THAZHAKARA, MAVELIKKARA, NOW RESIDING AT THURUTHEL HOUSE, THAZHATHANGADI P.O. BY ADV. SRI.PHILIP T.VARGHESE SRI.THOMAS T. VARGHESE SMT.SHUBHA ABRAHAM SMT.SUNANDA SUKUMARAN RESPONDENT(S)/RESPONDENTS :- ------------------------------------------------ 1. VINOD KUMAR, CHENKARAKIZHAKKATHIL HOUSE, VAZHUVADI, THAZHAKARA, MAVELIKKARA. 2. RADHAMANI, CHENKARAKIZHAKKATHIL HOUSE, VAZHUVADI, THAZHAKARA, MAVELIKKARA. 3. THE NEW INDIA ASSURANCE CO.LTD., KOTTAYAM. R1 & R2 BY SRI.M.V.THAMBAN SRI.R.REJI SMT.THARA THAMBAN R3 BY ADV. SRI.M.JACOB MURICKAN THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING BEEN FINALLY HEARD ON 30/05/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: jvt HARUN-UL-RASHID, J. ------------------------------- M.A.C.A. No.746 of 2010 ---------------------------------- Dated this the 30th day of May 2011 J U D G M E N T The petitioner in O.P.(MV)No.515 of 2004 on the file of the Motor Accidents Claims Tribunal, Kottayam is the appellant. The Tribunal passed an award for Rs.44,626/- directing the 2nd respondent, owner of the vehicle to pay the award amount with interest at 7% per annum. Complaining that the compensation awarded is inadequate, the appellant has approached this Court. 2. The date of accident was on 14.1.2002. As a result of the accident, the petitioner sustained serious injuries. Immediately she was taken to the Govt. Hospital, Mavelikkara and later referred to the Medical College Hospital, Kottayam for treatment. Ext.A2 is the copy of accident register cum wound certificate issued from the hospital. The record shows that the petitioner sustained serious injuries. The petitioner was an inpatient in the Medical College Hospital, Kottayam M.A.C.A. No.746 of 2010 -: 2 :- for 21 days. She was treated by K-nailing and interfragnatory coupesion using 2 cortical screws as lag screws. The petitioner was aged 65 years at the time of accident. She is a house wife. For the purpose of assessing compensation, the learned Judge assessed her monthly income as Rs.2,500/-. The learned counsel for the appellant submits that for a house wife, the monthly income assessed for the purpose of compensation is more than Rs.3,000/- and Rs.2,500/- assessed by the learned Judge as monthly income is inadequate. I, accordingly, refix Rs.3,000/- as monthly income of the petitioner. The learned Judge granted Rs.12,500/- as temporary loss of income for a period of five months on the basis of the assessment of monthly income at Rs.2,500/-. Therefore, a total amount of compensation under the head of temporary loss of income is modified. A sum of Rs.2,500/- is granted as additional compensation to the appellant. 3. Rs.1,000/- was fixed on the expenses made by the petitioner under the head of transport to hospital. The said amount is also too low and therefore, this Court assessed and M.A.C.A. No.746 of 2010 -: 3 :- granted an additional compensation of Rs.1,000/- under the same head. For pain and suffering, the learned Judge awarded Rs.15,000/- as compensation. Taking into consideration the nature of injuries and prolonged treatment, this Court of the view that the appellant is entitled to an amount of Rs.5,000/- more towards pain and suffering. Therefore, Rs.5,000/- is granted as additional compensation under the head of pain and suffering. In addition to the enhancement as stated above, the appellant is entitled to Rs.2,500/- towards bystander expenses. Infact, in paragraph 11 of the award, the learned Judge granted Rs.2,500/- towards bystander expenses. But in paragraph 12, when the total compensation is calculated, the said amount is not mentioned. This is a mistake. Therefore, the appellant is entitled to Rs.2,500/- towards bystander expenses. Thus, the appellant is entitled to an additional compensation of Rs.11,000/- (Rupees Eleven Thousand only) with interest at 7% per annum for the period from the date of claim petition till realisation. 4. The Tribunal also held that the Insurance Company M.A.C.A. No.746 of 2010 -: 4 :- is not liable to indemnify the 2nd respondent. The Tribunal accepted the contention of the Insurance Company that the first respondent is not having valid driving licence at the time of accident. Following the Apex Court decisions, the Tribunal held that the 3rd respondent Insurance Company is not liable to indemnify the owner and directed that the petitioner is entitled to recover compensation from respondents 1 and 2 jointly and severally. 5. The learned counsel for the appellant relying on the decision of the Apex Court in Kusumlatha v. Satbir and others reported in AIR 2011 SC 1234 contended that the Insurance Company is liable to pay the compensation at the first instance and later can recover the amount from the owner of the vehicle. The Apex Court held that the Insurance Company in similar cases has to pay and then recover the award amount from the owner of the vehicle. The judgment was passed by the Apex Court confirming the direction issued by the same court in National Insurance Company Limited v. Swaran Singh and others reported in AIR 2004 SC 1531. M.A.C.A. No.746 of 2010 -: 5 :- In the light of the legal principles discussed above, it is directed that the Insurance Company shall pay the entire compensation to the appellant with liberty to recover the amount from respondents 1 and 2. In the result, the appeal is partly allowed. The impugned award is modified to the extent as stated above. The Insurance Company is directed to deposit the compensation amount by way of cheque within 10 (ten) weeks from today. No order as to costs. HARUN-UL-RASHID, JUDGE. Jvt