IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
WEDNESDAY, THE 1ST DAY OF JUNE 2022 / 11TH JYAISHTA, 1944
MACA NO. 3115 OF 2014
AGAINST THE AWARD DATED 31.3.2014 IN OP(MV) 51/2011 OF II
ADDITIONAL MOTOR ACCIDENT CLAIMS TRIBUNAL, PALAKKAD
APPELLANT/PETITIONER :
A.MUTHU @ MUTHUKUTTY,
AGED 32 YEARS,
S/O.ASSANAR, CHAKRAI,
THIRUVAZHIYOD, NENMARA,
PALAKKAD.
BY ADV SRI.JACOB SEBASTIAN
RESPONDENTS/RESPONDENTS :
1 VELUKUTTY,
AGED 33 YEARS,
S/O.RAMAN THANDAN,
CHAKRAI VEEDU, THIRUVAZHIYODE VILLAGE,
AYILUR PANCHAYATH, CHITTUR TALUK,
PIN - 678 508, PALAKKAD DISTRICT.
2 THE ORIENTAL INSURANCE CO.LTD.,
SHORNUR ROAD, TRICHUR, PIN - 680 001.
BY ADVS.
GEORGE CHERIAN (SR.)
ALEXY AUGUSTINE
GEORGE A.CHERIAN
BY SMT.K.S.SANTHI, STANDING COUNSEL
MACA No.3115 of 2014
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A.BADHARUDEEN, J.
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MACA No.3115 of 2014
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Dated this the 1st day of June, 2022
JUDGMENT
The appellant, who is the petitioner in O.P. (MV)No.51 of 2011 on the file of the Motor Accidents Claims Tribunal, Palakkad, assails award dated 31.03.2014 in the above case on the ground of inadequacy. Respondents herein are the respondents before the Tribunal.
2. Heard Adv.Sri.Jacob Sebastian appeared for the appellant/petitioner and Adv.Smt.K.S.Santhi, the learned Standing Counsel for the Oriental Insurance Company, the second respondent.
3. Brief facts of the case are as follows:- The appellant, who met with an accident on 15.03.2009 at about 15.30 hours, while travelling in his MACA No.3115 of 2014 ..3..
bike, had preferred claim under Section 166 of the Motor Vehicles Act to the tune of Rs.5,00,000/- against the respondents alleging negligence on the part of the first respondent who alleged to have driven the autorickshaw bearing registration No.KL-49-9519 in a rash and negligent manner at the time of accident.
4. The insurance company resisted the claim and disputed the accident, negligence as well as quantum of compensation claimed while admitting valid policy to the Autorickshaw.
5. The Tribunal adjudicated the matter, after examining PW1, the doctor who issued the disability certificate and marking Exts.A1 to A12, on the part of the appellant. Accordingly, Rs.2,39,150/- was granted along with 9% interest.
6. While canvassing enhancement, it is MACA No.3115 of 2014 ..4..
submitted by the learned counsel for the appellant that the Tribunal fixed the monthly income of the appellant who claimed to be a lorry driver at Rs.3,500/- as against claim of Rs.5,000/-.
7. Therefore, he pressed for re-fixing the monthly income as claimed and also re-calculation of the loss of earnings and disability income apart from granting reasonable compensation under the head pain and sufferings and loss of amenities.
8. Per contra, the learned counsel for the insurance company would submit that Rs.5,000/- claimed as monthly income can be fixed at Rs.7,000/- as per the ratio in [(2011) 13 SCC 236], Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. The counsel would submit further that Rs.10,000/- under the head 'loss of earning capacity' also MACA No.3115 of 2014 ..5..
was granted by the Tribunal, after granting disability income and therefore, the same shall be reduced.
9. The appellant raised a contention before the Tribunal that he was getting Rs.5,000/- per month being a lorry driver. Although the Tribunal fixed the same at Rs.3,500/-, I am of the view that Rs.5,000/- as claimed can be fixed as his monthly income. The age and multiplier applied by the Tribunal are not in dispute. The Tribunal granted loss of earnings for a period of three months at the rate of Rs.3,500/-. In this matter, the appellant sustained fracture lateral condyle femur, fracture 1/3 rd tibia and fibula and fracture patella right and also he underwent inpatient treatment for 16 days. Considering the multiple fractures and treatment thereof, I am inclined to grant loss of earnings for a period of four months at the rate of Rs.5,000/-. The same is re-calculated as under; MACA No.3115 of 2014 ..6..
5,000x4 = 20,000/-
Out of which, Rs.10,500/- was granted by the Tribunal and the balance Rs.9,500/- more is granted under the head loss of amenities.
10. Though the learned counsel for the appellant pressed for 24% disability assessed by the doctor, it appears that the Tribunal, after evaluating the evidence of PW1, fixed the same at 20%. I am not inclined to re-visit the percentage of disability. Therefore, the disability income requires re-calculation based on the increased monthly income at the rate of Rs.5,000/-. The same is re-calculated as under;
5,000x20/100x12x16=Rs.1,92,000/- Out of which, Rs.1,34,400/- was granted by the Tribunal and the balance Rs.57,600/- more is granted under the head loss of disability income. MACA No.3115 of 2014 ..7..
11. Towards pain and suffering, the Tribunal granted Rs.15,000/-. I am inclined to increase the same by Rs.6,000/- more. Towards loss of amenities, the Tribunal granted Rs.8,000/-. The same also is increased by Rs.7,000/- more. As far as compensation granted under the head "loss of earning capacity", the same is impermissible in view of the fact that the disability income already granted. Thus, Rs.10,000/- granted by the Tribunal under the said head stands reduced.
In the result, this appeal is allowed. It is ordered that the appellant is entitled to get enhanced compensation to the tune of Rs.70,100/-(Rupees Seventy Thousand One Hundred only) at the rate of 9% interest granted by the Tribunal from the date of petition till the date of deposit or realisation excluding the period of 49 days wherein, grant of interest was specifically MACA No.3115 of 2014 ..8..
disallowed by the order in C.M.Application No.1 of 2014 dated 05.01.2022. The 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 rkj