IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
WEDNESDAY, THE 6TH DAY OF JULY 2022/15TH ASHADHA, 1944
MACA NO. 2075 OF 2009
AGAINST THE AWARD IN OPMV 50/2001 OF MOTOR ACCIDENT CLAIMS
TRIBUNAL, THALASSERY
APPELLANT/PETITIONER:
SIBY
S/O.SEBASTIAN,
AGED 36 YEARS, KOYIKKALOTTU HOUSE,
P.O.KILIYANTHARA, IRITTY.
BY ADV SRI.C.P.PEETHAMBARAN
RESPONDENTS/RESPONDENTS IN OP MV:
1 SYED ALAVI
S/O.KHADER, URAGATHODY HOUSE,
P.O.MOKERI,THALASSERY.
2 FARAH TABASSAUM W/O.SYED AJAZ
SHAMA TRANSPORT, NO.76/IB, A.V.ROAD,
BANGALORE-2, KALASIPALAYAM.
3 THE ORIENTAL INSURANCE CO.LTD.
NO.21, IST FLOOR, MISSION ROAD,
CIRCLE SUBBAIHA, BANGALORE-27.
4 H.B.RAMNATHA SHETTY, DOOR NO.275
15TH CROSS, WILSON GARDEN, 8TH CROSS,
LAKKASSANDRA BANG.
5 RAMAKRISHNA, JOUGEEPURA
CHENNANRAGAPPATTANA TALUK, HASSAN DISTRICT.
6 UNITED INDIA INSURANCE COMPANY LTD.
KANNUR.
BY ADVS.
SRI.VPK.PANICKER
SRI.V.SUMESH
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR ADMISSION ON
06.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
MACA NO. 2075 OF 2009
2
JUDGMENT
Dated this the 6th day of July, 2022 Award dated 14.02.2007 in O.P.(MV).No.50/2001 on the files of the Motor Accidents Claims Tribunal, Thalassery is under challenge in this appeal filed by the original petitioner under Section 173 of the Motor Vehicles Act. The respondents herein are the respondents before the Tribunal.
2. Heard the learned counsel for the appellant as well as the learned Standing Counsel appearing for the Insurance Company.
3. The short facts are as follows:
The appellant lodged claim before the Tribunal on the allegation that he sustained serious injuries pursuant to an accident occurred on 26.08.1999 while he was travelling in a bus, due to the rashness and negligence on the part of the first respondent, driver of the bus. The appellant MACA NO. 2075 OF 2009 3 claimed Rs.2,00,000/- from respondents 1 to 3.
4. Respondent Nos.1, 2 and supplemental respondent Nos.4 and 5 were declared ex parte by the Tribunal.
5. The third respondent, insurer filed written statement and disputed the accident, while admitting policy to the bus. Quantum under various heads also seriously disputed.
6. The supplemental sixth respondent-Insurance Company also filed written statement denying the insurance policy of the vehicle.
7. The Tribunal adjudicated the claim, after recording documentary evidence marked as Exts.A1 to A7, where respondents did not adduce any evidence.
8. Thereafter, the Tribunal granted Rs.28,350/- as against claim of Rs.2,00,000/- payable by the third respondent-insurer.
MACA NO. 2075 OF 2009 4
9. The learned counsel for the appellant argued that though at the time of accident during 1999, the appellant was working as a Chartered Accountant in Kotak Mahindra Primus Limited, Bangalore and was earning Rs.22,000/- per month, the Tribunal fixed the same at Rs.2,500/-. On perusal of the petition, such contention could be gathered. When the learned counsel for the appellant was asked to justify the evidence in support of this contention, she fairly conceded that no evidence adduced. It appears that the Tribunal fixed the monthly income at Rs.2,500/- in this case involving accident of the year 1999 since the appellant failed to prove the income as claimed.
8. Even following the ratio in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. [(2011) 13 SCC 236], nothing in excess of Rs.2,500/- is liable to be fixed and therefore, the argument advanced by the learned counsel for the MACA NO. 2075 OF 2009 5 appellant seeking enhancement in the monthly income cannot be found in favour of the appellant as rightly argued by the learned counsel for the Insurance Company.
9. In this case, the appellant sustained the following injuries:
1. Sutured wound on the scalp 3 cms
2. Abrasion over the left knee 2 x 3 cms
3. Abrasion over the right leg 2 numbers 2x2 cms and 2x2 cms
4. Fracture of shaft of left fibula
5. Fracture of base of proximal phalanx of 2 nd digit.
10. As evident from Ext.A4, he was hospitalised for a period of four days and discharged thereafter. Considering the fracture of left fibula and fracture of base of proximal phalanx of 2nd digit, loss of earnings granted by the Tribunal is liable to be increased for a period of four months. Therefore, in addition to Rs.5,000/- granted by the Tribunal, Rs.5,000/- more is granted under the head 'loss of earnings'. No amount granted by the Tribunal under the head 'bystander's expenses'. Therefore, for four MACA NO. 2075 OF 2009 6 days, I am inclined to grant Rs.600/- under the head 'bystander's expenses' at the rate of Rs.150/- per day.
11. The Tribunal granted Rs.15,000/- under the head 'pain and sufferings'. Considering the injuries and treatment, I am inclined to increase the same by Rs.7,000/- more. No amount granted under the head 'loss of amenities' also. Therefore, Rs.10,000/- granted under the head 'loss of amenities'.
In the result, this appeal stands allowed. It is held that the appellant is entitled to get Rs.50,950/- as compensation, out of which Rs.28,350/- was granted by the Tribunal and the balance of Rs.22,600/- (Rupees twenty two thousand and six hundred only) is granted as enhanced compensation with the same rate of interest awarded by the Tribunal, payable by respondents 1 to 3 and the 3rd respondent Insurance Company is liable to pay the same, from the date of petition till the date of deposit or realisation, excluding interest for a period of 714 days MACA NO. 2075 OF 2009 7 specifically excluded by this Court while allowing the delay petition-C.M.Appl.No.2412 of 2009 as per order dated 03.11.2016, while condoning the delay in filing this appeal.
Hence, the 3rd respondent Insurance Company is directed to deposit the same in the name of the appellant within two months from today. On deposit, the appellant can release the same.
Sd/-
A. BADHARUDEEN JUDGE nkr