IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
FRIDAY, THE 17TH DAY OF JUNE 2022 / 27TH JYAISHTA, 1944
MACA NO. 141 OF 2013
AGAINST THE AWARD DATED 03.11.2011 IN OPMV 2722/2005 OF IST
ADDITIONAL M.A.C.T, KOZHIKODE
APPELLANTS/SUPPL.PETITIONERS 2 TO 4 IN OP (MV):
1 JAYALAKSHMI
AGED 50 YEARS
W/O.DEVADAS, NEDIYAPARAMBATH HOUSE,
P.O.ERANHIKKAL, KOZHIKODE DISTRICT.
2 JISHA
AGED 28 YEARS
D/O.DEVADAS, NEDIYAPARAMBATH HOUSE,
P.O.ERANHIKKAL, KOZHIKODE DITRICT.
3 JIMISHA
AGED 24 YEARS
D/O.DEVADAS, NEDIYAPARAMBATH HOUSE,
P.O.ERANHIKKAL, KOZHIKODE DISTRICT.
BY ADV P.V.ANOOP
RESPONDENTS/RESPONDENTS 1 AND 2 IN OP(MV):
1 THE MANAGING DIRECTOR
M/S.PEEKEY ROLLER FLOUR MILLS,
NALLALAM P.O. KOZHIKODE DISTRICT-673 014.
(RC OWNER OF MOTOR CYCLE KL-11-J 6137)
2 IFFCO TOKIO GENERAL INSURANCE CO.LTD
COCHIN SBU, XL/1485,
SATGAMAYA 1ST FLOOR, M.G.ROAD, COCHIN,
ERNAKULAM 682 011
(INSURER OF MOTOR CYCLE KL-11-J-6137)
BY ADV P.JACOB MATHEW
THIS MOTOR ACCIDENT CLAIMS APPEAL HAVING COME UP FOR
ADMISSION ON 17.06.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
MACA NO. 141 OF 2013
2
JUDGMENT
Dated this the 17th day of June, 2022 Supplemental petitioners, who represented the Original petitioner in O.P.(MV).No.2722/2005 on the files of the Additional Motor Accidents Claims Tribunal, Kozhikode, assail award dated 03.11.2011 in the above case, on the ground of inadequacy. Respondents herein are the respondents before the Tribunal.
2. Heard both sides.
3. The summary of the case is as follows:- O.P.(MV) No.2722/2005 was filed by the original petitioner, who is now no more, when he met with an accident on 16.06.2005 at about 7.15 p.m. while he was crossing the road in front of Vasantha Hotel and when he sustained serious head injuries as a result of the accident. He claimed Rs.6 lakh as compensation, attributing MACA NO. 141 OF 2013 3 negligence on the part of the first respondent.
4. During the pendency of the petition, the original petitioner died on 07.10.2010 and subsequently, supplemental petitioners were impleaded.
5. The first respondent was declared ex parte by the Tribunal.
6. The Insurance Company filed written statement and resisted the claim, while admitting valid policy to the vehicle involved in the accident.
7. The Tribunal tried the matter. PW1 examined and Exts.A1 to A36 were marked on the side of the appellants. No evidence let in by the respondents. Ext.C1 disability certificate was also marked.
8. Thereafter, as against the claim of Rs.6 lakh, the Tribunal granted Rs.2,95,112/-.
9. The learned counsel for the appellants argued that the monthly income fixed by the Tribunal is on lower MACA NO. 141 OF 2013 4 side since the income of the original claimant was claimed at Rs.6,000/- as a person doing business. But the Tribunal fixed the same at Rs.5,000/-. It is argued by the learned counsel for the appellants further that Exts.A5 and A36 showing payment of license fee for running a stationary shop during the years 2004 - 05, 2005 - 06 and for the period 2009 were produced. Ext.A35 alone is relevant in this case.
10. Whereas, the learned counsel for the Insurance Company would submit that following the ratio in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Company Ltd. : (2011) 13 SCC 236, Rs.5,000/- fixed by the Tribunal as the monthly income is reasonable and no evidence, otherwise, established to see that the original petitioner was having income more than Rs.5,000/-.
11. While appraising this contention, mere production of a receipt showing payment of license fee for MACA NO. 141 OF 2013 5 running stationary business, by itself, is not sufficient to hold that the original petitioner was having income of Rs.6,000/- at the time of accident. Therefore, I am not inclined to re-visit the monthly income fixed by the Tribunal. Thus, it appears that the Tribunal granted compensation on all heads based on the evidence available, treating the case as a case of injury, where there was no evidence adduced to substantiate that the original petitioner died after five years of accident in consequence of the accidental injuries.
12. On perusal of the award, it is noticed that the Tribunal granted Rs.15,000/- alone under the head 'pain and sufferings', Rs.5,000/- under the head 'loss of convenience and enjoyment of life' and Rs.5,000/- under the head 'extra nourishment'.
13. As per Ext.A3 wound certificate, the original claimant sustained head injury with parietal extra dual haematoma, subarachnoid haemorrhage pneumocephalus, MACA NO. 141 OF 2013 6 fissure fracture right parietal bone and fracture left femur and he underwent treatment for the same for a period of ten days from 16.06.2005 to 25.06.2005, as borne out from the disability certificate issued and the treatment records. In view of the above, I am inclined to grant Rs.12,000/- more under the head 'pain and suffering' and Rs.18,000/- more under the head 'loss of amenities and enjoyment of life' and Rs.5,000/- more is granted under the head 'extra nourishment'.
In the result, this appeal stands allowed in part. It is held that the appellants are entitled to get Rs.3,30,112/- as compensation out of which Rs.2,95,112/- was granted by the Tribunal and the balance amount of Rs.35,000/- is granted as enhanced compensation with the same rate of interest awarded by the Tribunal, excluding interest for a period of 306 days specifically excluded by this Court while allowing the delay petition-C.M.Application No.1 of 2013 as per order dated 24.11.2021, payable by the 1st MACA NO. 141 OF 2013 7 and 2nd respondents jointly and severally from the date of petition till the date of deposit or realisation.
The Insurance Company is directed to deposit the amount in equal proportion in the name of the appellants within two months from today. On deposit, the appellant can release the same.
Sd/-
A. BADHARUDEEN JUDGE nkr